on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of ward-Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
his Intromission and disposing of the same A Compryser after expiring of his Comprysing of his Debitors Estate exceeding the value of his Debt Intrometting with or disposing of a part of the same Quaeritur If he may Compryse any other Estate belonging to the Debitor Upon pretence that he is not satisfied Or if the Expiring of the Comprysing and the making use thereof thereafter putteth him in the same condition as if the Lands had been Disponed to him irredeemably and datae and accepted in solutionem So that both Principal and Cautioner against whom a Comprysing is yet running may pretend that the Debt is satisfied At the least that the Creditor should denude himself of that Comprysing cum omni causa Lamertoun contra Mr. John Fairholme A Compryser of Lands holden Ward being Infeft Quaeritur If these Lands will ward by the Decease of the Compryser And if the Marriage of the Appearand Heir will fall Ratio Dubitandi A Compryser is but an interim Vassal for security of his Debt And upon that Consideration such a Right in England is considered as a Chattel If the Comprysing be redeemed will the Debitor be Lyable to refound the Damnage sustained by the Ward and Marriage Quaeritur If the Ward of the Comprysers Heir will determine and expire upon the Redemption Quid Juris in that case of proper Wadsets if the Debitor after Redemption will be Lyable to Refound the foresaid Damnage The difference being that a Comprysing is an involuntar Right and the Wadset Voluntar so that the Creditor seemeth to take his hazard If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right whether the said jus superveniens will accresce If there be a difference betwixt a Compryser and a Buyer from an interposed Person who has acquired a fraudulent Right Viz. That a Buyer acquires a Right for an Onerous Cause and it is just and the Interest of Commerce that he should not be prejudged whereas a Compryser does only Diligence upon his own hazard and the Right Transit cum sua causa labe A Right being acquired bonâ fide from a Person not Inhibited after Comprysing and being Infeft before the Compryser Quaeritur Whether he or the Compryser will be preferable Answer The Lords found in the case of Sir Patrick Nisbet and Hamilton That the Compryser should be preferred Which appears to be hard seing a Comprysing is only jus ad rem and a Legal Disposition And the first compleat Right by Infeftment seems to be preferable and a Comprysing does not import vitium Litigiosi seing the Debitors Right is without Question And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in it self The Debitor or these who have Right to the Legal Redeeming from the Appearand Heir of the Compryser whether doth the Redemption sist the course of the Ward and Marriage if the Heir be not Fourteen Years of Age Answer Affirmative quia resoluto jure principali resolvuntur consequentia Will not the Debitor be lyable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debitor Answer Affirmative and the Creditor and his Heirs should be Indemnes It being the Debitors fault that they are forced to Compryse and that the Comprysing is not Redeemed Whether a Discharge does extinguish a Comprysing the Creditor granting to be satisfied In the same manner that Intromission within the Years of the Legal doth extinguish the same Answer If there be no Infeftment a Discharge is sufficient But if there be Infeftment there must be at least a Renounciation Registrate in the Register of Reversions A Comprysing being Redeemed whether doth the Debitors Right and Infeftment revive or must there be a new Seasin and what way shall the Debitor be Reseased Answer There must be a new Seasin and the same way is to be taken as in the case of a Regress Seing the Compryser as he has a Legal Reversion so there is a Legal Regress Quaeritur If a Comprysing as to all effects be equivalent to a Resignation Ratio Dubitandi That a Comprysing is not only a Legal Disposition but the Compryser may be immediatly Infeft upon the same as upon a Resignation though the Debitor decease If a Compryser get a Right to the Legal of his own Comprysing before it expire by another Apprysing And so Deinceps if there be more Comprysings whereof the first Appryser obtains Right within the Respective Legals Quaeritur when the same doe expire Cogitandum If a Royal Burgh or others having Power to receive Vassals upon Resignation has Power likewise to receive upon Comprysings And if in that case any Composition be due to them If the Lands be Comprysed how shall the Duties be divided Answer If any part of the Lands be sowen before the Comprysing the Encrease will belong to the Compryser And if the Lands be set the time of the Comprysing is to be considered For if the Comprysing be before Whitesunday the Compryser will have Right to the whole Duties And if it be before Martinmass he will have Right to the half And if after Martinmass to no part thereof The Superior being charged with Horning to receive a Compryser and being Denounced will he be Lyable for Damnage and Interest if either he Infeft a second Compryser or a Precept be direct out of the Chancery for Infefting him If upon the Redemption of a Comprysing the Superiors will be obliged to Infeft the Redeemer Gratis Quid Juris If the Redeemer be another Creditor Quaeritur If Comprysings be equivalent to Dispositions and Resignation following upon the same so that the first Compryser is preferable to others even before Infeftment Answer That Comprysings are only Legal Dispositions and do not denude the Debitor without Infeftment whereas Resignation being made in the Superiours hands and accepted doth denude What is the reason then that after Comprysing it is found that the Debitor not inhibited cannot Dispone in prejudice of the Compryser Answer That the Law and the Judge who is Lex animata having in subsidium Disponed to the Creditor the Debitors Lands the same is so affected by the Legal Diligence that the Debitor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor Without prejudice nevertheless of more exact and compleat Diligence of other Creditors who obtaining Infeftment will be preferred to the first Compryser as in the case of Moveables after Arrestment the Debitor cannot dispone the same and yet may be Evicted by another Creditor by way of Poinding If a Superiour be content to take a Right to a Comprysing of Lands holden of him not being willing to enter the Compryser Quaeritur If he may claim a Years Duty when the Lands are Redeemed Answer Negative And he is in
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
consent to which doth cease in this case seing the King is not only Consenter to the Subvassals Right but is Author by the presentation A Person having committed Treason and thereafter his Kinsman to whom he might have succeeded being Deceased Quaeritur If that Defuncts Estate will fall to the King or go to the next Heir Ratio Dubitandi That there seems to be a difference betwixt the case in the fifth Question of the Title Heirs when a person being Appearand Heir and having haereditas delata before he commit Treason the same should fall to the King seing he was Haeres habitu and had jus radicatum in his Person before his Treason and therefore Forefaults the same to the King Whereas in this said other case when the Succession fell the Traitor could not have any Right in his Person being nullus and incapable of Succession So that it cannot be said that he is Legitimus and propinquior haeres A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh and the same being confirmed by the King the granter was thereafter Forefaulted so that the Subvassal did come to hold of the King Quaeritur Whether he will hold as he did formerly or Ward as his immediat Superior did A Person being Appearand Heir both in Land and Heretable Sums but not being served Heir And being Forefaulted after the Decease of his Predecessor Quaeritur If he doth Forefault not only the Lands but the said other Heretable Estate Answer It is thought there is a difference betwixt Lands and any other Heretable Estate seing the Appearand Heir is obliged to enter to his Lands to the Effect the Superiour may have a Vassal Lyable to Service or other Duties so that his not entering is delictum vel quasi and the Lands are in Non-entry And he is in the same case in Relation to the Superiour as if he were entered Whereas as to any other Heretable Estate he needeth not owne or claim the same but if he pleases and he cannot have Right unless the same be settled upon him by a Service and consequently cannot Forefault that which is not his Vide supra in the Question concerning Cesnocks Forefaulture A Band being granted to an Englishman but bearing Registration in Scotland and being granted by a Scotsman If the Person Creditor be guilty of Treason whether it will fall under Forefaulture in England or Scotland Cum essent Sempronio duo filii Primogenitus patre adhuc vivo perduellionis damnatus fuerat postea patre mortuo utroque filio superstite nam perduellis fuga se subduxerat de haereditate patris ambigitur an ad primogenitum ex ejus persona ad Fiscum pertineret Nam Jure civili quod indigno aufertur fisco quaeritur Jure nostro haeres apparens Majestatis damnatus nedum sua sed bona haereditaria praedia quae sua forent si adita esset haereditast amittit ad fiscum transfert Sed distinguendum Et multum interest an filius praemortuo patre crimen postea admiserit an vero ut in casu praedicto ante patris obitum Majestatis reus damnatus sit priori casu cum primogeniti persona adhuc integra sit confestim a morte patris dies cedit haereditas ei delata est adeo ut qui etiam patre superstite haeres fuerat in spe Jam incipit haeres esse habitu spe certa radicata cum libuerit actu aditione haeres futurus si igitur postea maximam capitis diminutionem patiatur haereditas ipsi delata jus succedendi infiscum transit altero vero casu filio ante mortem patris damnato haereditas patris morte nec delata est nec deferri potuit utpote poena servo qui in jure nullus nec personam habeat in qua successionis jus radices agere queat his consequens est fratrem juniorem patri haeredem fore quia absurdum esset patrem a crimine alienum forte tam suis quam familiae meritis commendatum ex delicto filii nihil amittere dum viveret noxa enim caput sequitur morientem autem tum bona tum familiam memoriam perdere nec perduellis aut fisci melior debet esse conditio quod damnatus poenae se substraxerit extra quaestionis aleam est secundogenitum patri haeredem futurum primogenito patri praemortuo 2da In ista specie facti suboritur quaestio viz. si venia data restituatur primogenitus an frater desinit esse haeres Et quidem distinguendum est 1mo An cum restituitur haereditas integra ex asse adita sit fratre ex inquisitione haerede renunciato in omnibus quae patris fuerant praediis investito cum enim terrae in haereditate sunt ante investituram haud censetur esse aditio isto casu restitutio quae est ex gratia nemini nocet nisi concedenti nec adimit jus fratri quaesitum quod rite constitutum quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat 2do Sin restituatur primogenitus haereditate nondum ullatenus adita eo casu quia res adhuc est integra sublato obice per restitutionem qui oberat ne haeres esse possit incipit haeres esse habitu aditione actu haeres erit 3tio Haereditate partim adita partim non fra re in quibusdam terris investito in quibusdam haud sasito novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit in reliquis primogenitus haeres erit tantum adeo discrimen est inter jus inchoatum id quod penitus consummatum quaesitum est Multa enim cadunt inter calicem supremaque labra Forisfamiliation QVaeritur If the granting of a Provision to a Child importeth Forisfamiliation so that the Child cannot claim a Bairns part Or if it be to be considered what the subject of the Provision is Viz. Whether it be Heretable or Moveable Seing in the first case it seems that the Provision being out of a different Subject should not exclude from a share of Moveables David Scot Son to Walter Earl of Buccleugh Funeral Charges IF Funeral Expences should be deduced as a Debt off the whole or only off the Deads part If the Funeral Charges for Burying the Husband should affect the whole Moveable Estate or the Deads part Answer It should affect the Deads part seing it is not a Debt contracted during the Communion And the Deads part cannot be used or employed better than to Bury him If the Funeral Charges should be deduced in Relation to the Quot so that the Quot should be only of the Deads part free of the said Debt Answer It is thought it should not be deduced for the reason contained in the preceeding Querie G. Gestio Haeredis IF an Appearand Heir medle by
entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause â—um omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing
or where the Heir to the Disponer had Right himself the time of the disposition Quaeritur quo casu Jus Superveniens accrescit And if it should be understood of the Right only of moveables and such things as may be transmitted without infeftment And not of Lands and others which cannot habili modo be conveyed much less accresce without Infeftment Justice-General IF the Justice-General may be Judge to Ryots or any Crime or Delict whereof the pain is not defined by Law but left arbitrary K. Nearest of Kin. THE Interest of the nearest of Kin is that they may be confirmed Executors and if they die before confirmation they do not transmitt and yet if the Testament be confirmed by any person nascitur actio against the executor who is Lyable to the nearest of kin which they transmitt There being three persons who are nearest of kin to a Defunct and the edict is moved and served at the instance of the Procurator-fiscal and two confirmed only whether will the third have action against the other two as nearest of kin for a part Ratio Dubitandi That these who are executors of Law cannot have Right de facto unless they confirm that being modus adeundi in mobilibus and the nearest of kin by the act of Parliament has only an action in the case where he cannot adire there being executors nominate and confirmed who have Right to the office and a third part so that the nearest of kin may pursue for the rest When the nearest of kin have action against the Executor Nominate if some of them decease before confirmation whether will they transmitt the forsaid action Ratio Dubitandi it is not Officium but Jus legitimum which may be transmitted as the relicts part and bairns part without respect to the confirmation and on the other part it may seem that seing they did not intent action before their decease they do not transmitt and in such cases the intenting of action is instar aditionis and there is no representation in moveables There being two Daughters of which one being Married by her Contract of Marriage accepts her Tocher in satisfaction of what she could Pretend to by the decease of her Father and Mother Quaeritur the Father having survived the Mother whether will the other Sister have entirely her Mothers part as nearest of kin to her Ratio Dubitandi The other had renounced And on the other part the Mothers part did entirely belong to her self and to her nearest of kin and the said sister that renounced is alse near to her Mother as the other Vide Renunciation Litera R. KING IF the King take burden in a Discharge granted by a Minor that he shall ratify at perfect age Quaeritur whether the Kings successors will be lyable representing their predecessors Ratio dubitandi The King succeeds not as Heir but Jure Coronae as in the case of single incorporations V G Bishops who are said to be successors and are not Lyable to the debts of their predecessors or in the case of feuda ex pacto providentia Cogitandum Earl of Tweeddale and Duke and Dutchess of Monmouth If the King be in the case of other Minors So that a revocation is not sufficient unless a reduction be intented Debito tempore intra quadriennium utile King and Prince IF the King and Prince be to be considered as incorporate so that these who succeed are in the case of successors of Church-men and do not succeed by Inheritance but by succession L. Laudimium LAudimium debetur Usufructuario non Proprietario Thes Besoldi verbo Handlohm P. 359. versus finem Licet Dominus directus post alienationem ab Emphyteuto factam novum possessorem investiat nulla facta mentione Laudimij aut ab eo censum recipiat tamen suo juri non censetur renunciare sed Laudimij integram exactionem habet nisi expresse donaverit Ibid. p. 360. sect 2. Laudimium nondum exactum connumeratur inter fructus pendentes si Emphyteusis pertinet ad parochum illud non exactum ad haeredes haud transmittitur sed cedit ei qui in beneficio succedit ibidem Lawburrows for Burghs IF a Burgh be Lyable to find Lawburrows for their Burgesses The Lord Thesaurer-Deput In Lecto IF in Lecto a Person having children may marrie their Mother in order to their Legitimation in prejudice of his Heirs If after a criminal and capital sentence a person condemned be in Legitima potestate Seing he cannot be said to be in Lecto and the Sentence doth not affect immobilia If a man on death-bed be accessory to Treason whether will his Estate forefault in prejudice of his Heir It seemeth that though in Lecto Lands cannot be sold or annailÈied any way in prejudice of the Heir that being only the case of the old Law of deeds in Lecto Yet consequentially a man on death-bed may do many deeds in prejudice of the Heir and a Traitor on death-bed may be taken out and punished If a Band being heretable may be made moveable of purpose in Lecto Executors of Colonell Mathison George Hadden If an infeftment be given of Lands holden Ward upon the resignation of the Father in Lecto and a reversion apart to the Father to redeem upon a Rose-noble Quaeritur if the Ward and Marriage be cut off Answer if the Lands hold of a Subject Sibi imputet that he did not enquire and know the condition of the Disponer But if they hold of the King there may be some question Seing the Kings Grants may be questioned upon Obreption or Subreption and the negligence of his Officers should not prejudge him and it appears the course forsaid was taken of purpose to defraud the King of his casualities being in spe proxima and the disponer having Provided for himself that he should be master of his Estate by the Reversion forsaid It is thought there is a Decision in the said case in favours of the King which should be tryed A person on death-bed having made a Disposition in favours of a Creditor but to the Prejudice of his other Creditors The Defuncts whole estate being disponed in favours of the Creditor forsaid Quaeritur If the Defunct could on death-bed prejudge his other creditors and preferr one to all his other Creditors Seeing persons being on death-bed are not in Liege Ponstie as to any deeds But the making of Testaments and not as to deeds inter vivos and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained and any deed done on death-bed is upon the matter but a Legacy or codicill and a dying person should not be allowed to do any fraudulent deed and it is a fraud where there are many creditors to give one the whole estate and a person in Lecto cannot Prejudge his Heir and a fortiori ought not to prejudge his creditors who would be preferable to Heirs and as in the
prejudged to question or dissolve the Marriage as null or dirimendum upon that or any other Ground If a Marriage be unlawful and either of the Parties be in bona fide which doth legitimate the Children Quaeritur If these Children will succeed with other Children of lawful Marriages at least to their Parents If they will succeed to their other Kinsmen or if the Legitimation will only import that they are not Spurij and that they have Testamenti factionem If a marriage after Inhibition may be reduced upon that ground What are the Legitima Remedia to compell parties to consummate marriage upon Contracts Whether they may not only be decerned by the Commissars but by the Church under the pain of Ecclesiastick censure Where some Lands hold of the King taxt-Taxt-ward and others hold of him Simple ward Quaeritur will he get both the simple Marriage and the taxt Sir Iohn Cuninghame saith it was decided in the case of Innernytie for both Marriage being dissolved within year and Day whether the Gifts and Jocalia given hinc inde may be repeated Item whether the gifts given by friends will fall under communion So that the Maxim that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been Is only to be understood of Dos Donatio propter nuptias If an old Woman super annos and past the age of Marriage being about Threescore years shall succeed in the Right of ward-Lands whether Marriage will be due Iohn Bonars Heir Quid Juris if a widow either man or woman inter annos nubiles shall succeed to Ward-lands Barclay of Pearstoun If a Person have only two acres or a mean interest in Ward-lands but a very great interest otherwise Whether will his Marriage be considered with respect to his whole Estate Seing the Marriage of appeirand Heirs belongs to the eldest Superiour Quaeritur who shall be thought the eldest Superiour whether the eldest as to the Lands or as to the Vassal and if it be to be considered which of the Lands was first given in Tennandry Quid Juris when a Marriage is fallen but not declared nor gifted A Marriage being contracted betwixt a woman Pubes and one that is impubes Quaeritur If it be a Marriage at least as to her so that she cannot marry with another in the interim that he is not pubes Ratio Dubitandi That a Contract being mutual cannot Claudicate A Father by his daughters Contract of Marriage having disponed to her and the second Son of the Marriage and the other Heirs therein mentioned his Estate under Reversion and certain other Conditions and in special if he should ordain a certain Sum should be payed by these who should succeed to the Estate to his Daughter and her forsaids and the said contract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband Quaeritur If the Marriage be dissolved within year and day without Children whether the Contract will be ineffectual as to all intents as being causa data non secuta cum effectu Or whether it be as to the Right of the person of the Daughter either as to the Estate or as to the said Sum ipso facto void at least reduceable And whether she may repeat the Tocher from the Husbands Heirs Lady Yesters contract of Marriage being dissolved within year and day A person being Heir to his Father in a great Estate holden blensh And having a small piece of Land holding ward which he may succeed to as Heir to his Father Quaeritur If notwithstanding he is Heir general and Heir in special in the Lands holden blensh he needs not Enter to the saids ward Lands in order to be free of a Marriage which would be considered with respect to the whole Estate Ratio Dubitandi That being Heir as said is otherwise he cannot refuse to be Heir of the said Lands Answer It is thought that if he was charged to enter Heir in special at the instance of a creditor in special he could not renounce But the superior cannot urge him to Enter but will have only the benefite of a Nonentry Seing the said other Lands and any interest he had as general Heir are distincta patrimonia from ward Lands and he may owne the one without the other If the superior may affect and evict the said ward Lands by adjudication for the Marriage of the appearand Heir considered with respect to his other Estate in prejudice not only of the appearand Heir but of any who should thereafter be appearand Heirs Ratio Dubitandi That the Marriage being but a Casuality may exceed more than the double of the value of the Lands which is absurd Cogitandum If the appearand Heir will notwithstanding be lyable to the Marriage albeit he doth not enter nor renounce to be Heir as to these Lands Ratio Dubitandi That Refutatio of vassals is not admitted unless they satisfy the casualities already fallen Answer It is thought he may renounce and be free of the casualities personally without prejudice to the superior to affect the Ground and the case is different from that of vassals infeft Seing they having accepted the Right they cannot offer to renounce unless they pay what was formerly due to the superior being fructus Dominij whereunto not only the Ground but they are lyable personally by reason of their Right and possession and it cannot be said that the appearand Heir has either Mortounhall There being diverse Adjudications of Land holding ward within year and day but Infeftment only upon one and that adjudication whereupon Infeftment is being before the debitors decease and therefore stopping the Ward and the rest after but within year and day of the first Infeftment Quaeritur If the first be satisfied by intromission may the superior claim the Ward of the appearand Heir of the Debitor being Minor in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors and doth not prejudge superiors of their Right and casualities and the adjudger Infeft is only vassal and the other adjudgers are not vassals and by them the superior can have no casuality either of Liferent Ward or Marriage Cogitandum L. Bancreiff When diverse Lands are holden of the King some in simple Ward and others Taxt as to the Ward and Marriage Quaeritur when the Marriage falls whether the King will have both the simple Marriage and the taxt Marriage Answer That since at one time there can be but one Marriage there can be but one Casuality for the same and as the King would have but one Marriage albeit there be diverse Lands holden ward of him simple-Ward So in the case foresaid where there are some taxt he cannot have two Marriages and the taxt being only aestimatio where there can be no Marriage there can be no Taxt due The same question may be of Lands holden simple and taxt-Taxt-Ward
accedat Rebellion A Bond being Assigned by a Rebel and the Assignation not intimate before the Rebellion Quaeritur Whether the Assigney or the Donator will be preferred Ratio Dubitandi That the Assignation denudes the Cedent and the Intimation is not necessary but to exclude another Assigney And the Rebel by his Rebellion does not transmit but amitts and Forefaults any Right that he has which being in nullius bonis is Domini Regis whereas it cannot be said that the Bond was in nullius bonis after the Assignation seing it is then in bonis Cessionarii Whether the Rebels Goods ought to be Lyable to Creditors SEing Bona are understood Debitis deductis and by the custom of all Nations when they are confiscate Transeunt cum sua causa and with the burden of Debts what can be thought the reason that it is otherwayes with us Answer It is thought that seing Lands when they are Forefaulted either to the King or to the Superior they return in the same manner ut optima maxima as they were given that condition being implyed in all Rights of Lands that the Vassal should be faithful and Loyal It has been thought but upon mistake That Moveables and other personal Estate should be confiscate in the same manner without respect to Debts whereas there is Dispar Ratio Lands as said is being given by the Superior with that quality whereas personal Interests are simply allodial and ought to be forth-coming to Creditors who though they have not a Right to the same yet have that Interest that they are the Subject of Execution and it appears to be unjust and to obstruct Trade if it should be otherways Recognition LAnds being Wadset for a Sum far below the value of the half with a Back-tack Quaeritur if there be ground for Recognition if the Land hold Ward Ratio Dubitandi The whole Lands are Wadset If Infeftments of Warrandice be Ground of Recognition A Vassal holding Ward giveth a Charter to his Subvassal or his singular successor upon Resignation with a Novo damus Quaeritur If the Novodamus will import a Recognition A Gift of Recognition being given of certain Lands whereupon the Donator is Infeft and therafter another Gift being given of the same in favours of of another person who is also Infeft after the former Donator but preveens by obtaining a Declarator upon his Gift the former not being declared Quaeritur Which of the Donators will be preferred Ratio Dubitandi That the first Infeftment seems to be preferable the Superior being thereby denuded And on the other part when Casualities and Escheats are Disponed which fall ex delicto as the case of Escheats by Horning There is no consummate Right before Declarator Whether an Appearand Heir if he Dispone and Infeftment follow the Lands will recognosce Ratio Dubitandi Quod nullum est nullum sortitur effectum And not being Infeft he cannot give any effectual Right Minors Disponing Ward Lands Quaeritur If they may be Reponed against Recognition Ratio Dubitandi They ought not to Reponed against Delicta after they are puberes Doli capaces And such Deeds importing Recognition are Crimina Delicta feudalia A Person being Infeft in Ward Lands with a Faculty and Power to the Disponer to Redeem and Dispone upon payment of a penny Quaeritur If the Disponer make use of that Power and do Dispone and if an Infeftment without consent of the Superior be taken whether there be Locus Recognitioni Ratio Dubitandi That he is not Vassal and the Superior has not consented that he should have and use that Power Lands holden Ward being Wadset for a Sum far beneath the value of the Lands with a Back-Tack Quaeritur If there be place for Recognition seing it is intended only that the Creditor should be secured and the Back-Tack Duty is within the half of the Rent Answer It is thought notwithstanding that there is ground for Recognition seing the whole property is Disponed and the Vassal has only a Superiority and is a Tennant only of the Property And beside the Superior has that prejudice that if his Vassal be Year and Day at the Horn the Liferent of the Property will not belong to him but only the Liferent of what is payable to his Vassal by the Wadsetter by the Reddendo of the Wadset Right and the Liferent of the Back-Tack will fall to the King and the Vassal may thereafter Discharge both the Back-Tack and the Reversion so that the Subvassal would have Right to the hail property without the Superiors Consent Redemption Heretable or Moveable QVaeritur If Lands being Redeemable and an order used will the Sum consigned belong to the Heir or Executor Ratio Dubitandi Surrogatum sapit naturam surrogati and the Defunct intended that the said Sum should be Heretable being fixed upon Land and the Debitor had no power to alter the Defuncts Intention as to the condition of any part of his Estate It is otherwayes when the same is consigned in Obedience to a premonition at the instance of a Creditor Vide. Executry quaest 2da in litera E. If a Declarator of Redemption doth denude the Wadsetter so that the Superior without any further Deed either of Renounciation or Resignation may Infeft the Granter of the Wadset If the Superior has receaved the Wadsetter and has given him a Charter bearing the Lands to be Redeemable will he be obliged upon Redemption to Re-enter the Granter without a Regress Ratio Dubitandi That the Granting of the Charter with that Quality seems to import a Regress Answer It is thought that it does not import a Regress it being a Provision betwixt the Parties and to be understood Civiliter that the Superior should not be obliged to Re-enter the Debitor being once denuded but upon such Terms as he shall think fit otherwayes there should be no use for Letters of Regress Order of Redemption AN Order of Redemption being used may the User pass from the same the other Party being unwilling An Order of Redemption being begun by Premonition at a certain time to receive the Money contained in the Reversion and before the term the person premonishing being deceased Quaeritur If his Heir being served before the terme may prosecute and compleat the order by Consignation Ratio Dubitandi Premonition may seem to be personal And e contra the Heir is Eadem Persona so that the premonished is not concerned whether he receive the Money from the Person himself or his Representatives Reduction WHen a Right is reduced Ex capite Minoris Aetatis or Circumvention or upon any other Ground so that the Infeftment whereby the Disponer was disseased is taken away Quaeritur If the Disponer must be re-seased Ratio Dubitandi Fictione Juris By the Reduction he is reponed as if he had not been disseased And on the other part Dissasina being facti quod factum est fieri infectum non potest And when Wadsets are Redeemed albeit the
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
delictum If Marriage be real and affects in prejudice of singular Successors Ratio Dubitandi Hope is for the Affirmative and alledgeth Decisions To consider Haltons case On the other part in Novodamuses amongst incumberances that affect there is no mention of Marriage 2do The Marriage respecteth not the Lands but the person and his other Estate as to the value 3tio It may appear to be a personal Prestation whereto the person and his Right dureing his and his Heirs time is Lyable but doth not affect a singular Successor as in the case of Ward A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King and when the said Feu was granted the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward and for securing the Feuer having bought the saids Lands as optima maxima at alse high a price as if the Lands had holden otherwayes that he and his Successors should not be Lyable to the Feu-duty during the Ward the Disponer was obliged to Infeft the Feuer in an Annualrent out of other Lands equivalent to the Feu-duty suspending always the effect of the said Right except during the Ward Quaeritur 1mo If the said general Discharge with an obligement to grant particular Discharges when required will militate against singular Successors being in rem Answer Cogitandum But it is thought that it will not unless the same were by way of Provision in the Charter and Seasin When Ward Lands were Feued which did hold of the King before the Year 1633. The Feuer during the Ward was only Lyable to the Feu-duty by the old Act of Parliament allowing the Feuing of such Lands but there is no mention of the Marriage in the said Act of Parliament Quaeritur therefore Whether the Marriage of the Disponer and his Successors will affect such Feues It is Answered That it is thought not seing the setting of Feus being allowed it appears that Feuers should be only Lyable to the Feu-duty The Feuer having ever possest since the granting of the said Right mentioned in the Querie abovewritten except one but not being Infeft upon the said obligement to Infeft in an Annualrent for relief of the Feu-duty Quaeritur If the Feuer should pursue upon the said obligement if it may be obtruded that it is prescribed Ratio Dubitandi That the said obligement is a part of the Feuers Right and the Feuer has been in possession by vertue of his Right all the time and if the Feuer had not been Infeft upon the Feu-Charter and had been in possession by the space of Fourty Years and after the expireing of the same should pursue the Disponer and his Representatives to grant a new Charter with a Precept to Infeft it could not be pretended that the said Right was prescribed If Lands holden Ward of the King be Feued after the Year 1633. and the King should question the said Feu as null being contrar to the Act of Parliament Quaeritur If Prescription may be alledged and obtruded against the King Ratio Dubitandi That the Right is null ab initio and cannot be a warrand and ground of Prescription Et quod nullum est nullum sortitur Juris effectum A Vassal of Ward Lands holden of the King having Feued the same conform to the Act of Parliament warranting such Feus Quaritur If the Vassal be Forefault whether such Feus will fall under the Forefaulture if they be not confirmed Or if the Act of Parliament warranting such Feus be equivalent to a confirmation Answer It is thought the King for himself and his Successors by the said Act did consent to all Feus that are to be granted by vertue thereof So that the same is equivalent to a Confirmation Marques of Huntlie Taxt Ward A Gift being granted of Wards simple or Taxt falling within a certain time Quaeritur if the Donator will have Right to the Taxt Ward for Terms thereafter Answer He will have Right to the same if the Taxt Ward has fallen within the said time as the whole time of the Ward seing Ward is to be considered as Jus integrum and Dies cedit when ever it falls albeit non venit Warrandice A Bond being Assigned with absolute Warrandice Quaeritur What is the import of the said Warrandice And if the Cedent should be Lyable if the Debitor be or should become Insolvent Answer It will import only that the Debt is true and due by a valide Bond but not that the Cedent should be obliged to warrand the condition of the Debitor the Law being express to that purpose that he should warrand deberi but not Debitorem locupletum esse As was found in the case of Mr. Robert Barclay Quid Juris If the Warrandice be in these Terms that the Debitor is Locuples and he be truely so for the time but he becomes Insolvent Cogitandum Infeftment of Warrandice IF an Infeftment of Warrandice being only base will be construed to be publick by Possession by reason of the Possession of the Principal Lands Dunglas Waste WAste being committed by a Liferenter or Wadsetter and the Heretor deceasing or disponing the Lands whether will the Action for the same be competent to the Heir of the Heretor or to his Executors or Singular Successors Answer It is thought it will belong to the Heir or Singular Successor being Actio in Rem And so it is by the English Law Witnesses Remitted THE necessary Qualification of a Witness being Honesty and Integrity which though presumed in all Persons yet cannot be thought to have been in these who by sentence on their own Confession are evidently Criminosi and guilty of the highest Crimes It would seem that a Remission may Free as to punishment and may Repone as to all other capacities and as to the Kings own Interest But not as to that which in behalf of the People requires Integrity And the King by a Remission may free a Pain but not a Guilt and cannot repone to Innocency Witnesses in case of Treason THE Law of the Majesty and the Statutes of King William Chap. 11th Of these who are Infamous and the Statutes of Robert the 1st Cap. 34. of these who are repelled from Testimony are clear that Socii Criminis cannot be Witnesses and convicti redempti cannot be Witnesses Quaeritur therefore if a Person convict of Treason and Remitted that he may be Witness against others can be Witness Especially that Law bearing That conducti prece vel pretio cannot be Witnesses and there can be no greater pretium than a Mans Life Skin for Skin c. VVomen VVitnesses QVaeritur If Women Witnesses may be admitted in the case of Divorce to prove Adultery Answer This Question is under debate upon Advocation from the Commissars of Edinburgh having admitted the same And that they should not be admitted 1mo That by our Law Cap. 34. Stat. 2d Ro. 1st Women are
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
And it was carryed by plurality that the Adjudication should be reduced Newtoun Reporter Mr. John Hay Clerk D. 388. Sheill Minister of Prestounkirk contra His Parishoners 28. November 1676. THE Lords Found That Viccarage Teinds are ruled by Custom and Local as to the Quota and Kinds and manner of payment of such Teinds as are truely Viccarage So far that in a pursute for Viccarage Teinds The Defenders Alledging that some of them had been in use of paying only some certain Kinds by the space of 20. Years The Lord Found the said Alledgance Relevant to free them of other Kinds Albeit they d d Reply that the Pursuer was in possession of the Kinds in question within the Parish some others of the Parish having been in use to pay the same And that Viccarage is nomen universitatis ut Baronia and possession of a part interrupts Prescription and is in Law Possession of the whole Newtoun Reporter D. 389. John Ker contra Jean Ker. eod die IN a pursute at the instance of a Donator It was Alledged That the Debt pursued for was Heretable quoad fiscum And it being Replyed That the Pursuer had Right thereto as Executor Creditor The Lords Found Process upon that Title tho supervenient The Testament being confirmed after the intenting of the Cause In the same Cause It was Found That a Testament being confirmed the nearest of Kin ipso momento has Jus quaesitum to that part of the Goods which belong to them and do transmit the same to their Executors and these who represent them tho the Testament was not Execute before the decease of the nearest of Kin And that the said Interest and Action being in effect a Legitima and competent to them by the Law and Act of Parliament is settled in their person and doth transmit tho the same be not recovered in their own time D. 390. Scot contra Toish eod die AN Assignation being made in Holland according to the custom there by way of Instrument under the Hand of a Notar a Tabellion having retained the Warrand in his Hands Signed by the Parties was sustained in respect of the custom and consuetudo loci Justice-Clerk Reporter D. 391. Drumellier contra E. Tweeddale 30. Novem. 1676. IT was objected against a Witness That he was Testis Domesticus being Servant to the Defender at least having been his Servant the time of the Citation Whereunto It was Answered That he was not presently his Servant and tho he was his Servant the time of the Citation he might now be a habile Witness The Reason why Servants cannot be Witnesses in behalf of their Masters ceasing in this Case viz. That their Masters might have influence upon them and that they may declare in their Favours out of fear to be put out of their Service And as to the pretence that it is presumed that the Defender put the Witness out of his Service of purpose that he might used as a Witness the same doth amount only to praesumptio hominis which cedit veritati And animus and design not being probable but by the Oath of the Party the Defender and the Witness were free to declare that he was not removed out of the Defenders Service upon the design foresaid And it was more strongly to be presumed that neither the Defender being a Person of Quality nor the Witness would perjure themselves It was farder urged That the witness was to be used upon a paper that had been produced after the intention of the Cause and for improving the Date of the same And that he was removed out of the Defenders Service befor the production of the said paper So that he could not have that prospect and design to use him as a witness and that he was removed upon the account foresaid The Lords before Answer Ordained that the Time of the production of the said paper might be tryed Redford Reporter Gibson Clerk D. 392. Grierson contra The Laird of Lagg 1. December 1676. A Superior having obtained the Gift of his own Ward did pursue his Subvassal at the instance of a Donator in Trust and to his behoof for Maills and Duties dureing the Ward And the Defender having Alledged That the Pursute was to the behoof of the Superior himself and that he or his Predecessor had Disponed to the Defender his Lands with absolute warrandice The Lords Found That the Gift of Ward being given to the Vassal did accresce to the Subvassal paying his proportion of the Composition Albeit it was urged that as the King might have given the said Gift to another he might have given it to the Vassal himself and he could not be in a worse case than another Donator And that the Subvassal knowing the nature of the Right that the Superior held Lands ward was Lyable to all Casualities arising ex natura rei to what Donator soever the same be given It was controverted amongst the Lords What should be the Ground of the Decision in point of Law And some were of the Opinion that it was upon that Ground that Jus superveniens accrescit the Lands being disponed to the Subvassal ut optima maxima But it was the Opinion of others That Jus superveniens accrescit when it is either of the Property or of any Servitude or of Casualities that had fallen before the Right granted to the Vassal but not of Casualities arising thereafter ex natura rei And therefore they thought that the Right should be found to accresce to the Vassal upon that Ground that the Relation betwixt a Superior and his Vassal and the mutual obligation fides betwixt them is such and so exuberant that the Superior should not take advantage of a Casuality fallen upon account of his own person and by his Minority And that a Right of Ward granted to the Vassal himself or to any other to his behoof is upon the matter a Discharge of the Casuality both as to himself and as to the Subvassal that is concerned in consequence Newtoun Reporter Haystoun Clerk D. 393. Home contra Scot. eod die IN a Process for Mails and Duties It was Alledged That one of the Defenders was in possession by the space of 7. Years by vertue of a Tack and had the benefite of a possessory Judgement And it being Replyed That he ought to say that he had a Tack from a person having Right And neverthess The Lords Found That is was sufficient to Alledge that he had a Tack and by vertue thereof in so long possession This Decision seemed to some of the Lords to be hard in respect a Tennent is not properly in possession but detinet to the behoof the Setter So that he could be in no better case than his Master who notwithstanding of his possession either in his own person or in the person of his Tennent cannot plead the benefite of a Possessory Judgement unless he had or should alledge upon some Right And if the Master were called as de facto
respect there can be no Executions without giving of Copies either personally or at their dwelling house And when the Leidges are inhibite at the Mercat-cross in general so that a Copy cannot be given to every person it ought to be left at the Mercat-cross in subsidium But because it was informed that many Executions did not bear Copies to be left at the Mercat-cross The Lords did forbear to give Answer as to the Inhibition in question until the stile and custom should be tryed D. 414. Dick of Grange contra Sir Andrew Dick. 22. December 1676. SIR Andrew Dick having obtained upon a Petition to His Majesty a Warrand to the Exchequer to pay to his Wife and Children 130 lib. sterl Yearly The said Annuity being Arrested at the instance of _____ Dick of Grange It was Alledged in a Process to make forthcoming that being Alimentary it could not be Arrested Whereunto it was Replyed that the said Sum was not Alimentary so that it could not be affected with Sir Andrew his Debts In respect whatsomever belongeth to a Debitor either on his own Right or Jure Mariti is Lyable to his Debts and it is not in the Power of a Debitor to make any thing belong unto him Alimentary but there must be an express constitution to that effect which is only in that case where the King or any other person doth give any thing and doth qualify their own Gift with that express provision that it should be only for the Aliment of the person gratified that it should not be affected with any Debt or Execution for the same whereas His Majesties Grant was only in the Terms foresaid and was procured from His Majesty not upon any special consideration or respect to Sir Andrew's Lady but upon a Representation made by Sir Andrew that he had a former Wadset from the Earl of Mortoun of his Estate in Orknay and the same being taken from him by a Reduction at the instance of His Majestie of the Earl of Mortoun's Right of Orkney he and his Family would be in a sad condition And therefore the said Annuity being granted by His Majesty in lieu and intuitu of the said former Right surrogatum sapit naturam surrogati It was farder Replyed That albeit the said Annuity were Alimentary the Pursuers Debt ought to affect the same being likewayes Alimentary In respect it was for Money furnished for the Aliment and Entertainment of the said Sir Andrew and his Lady privilegiatus non utitur privilegio contra privilegiatum The Lords Found That the said Annuity was Alimentary and could not be Arrested and the Aliment being de die in diem the Debt due to the Pursuer could not affect the same unless it had been for Aliment while the Annuity in question was in cursu Forret Reporter Mr. Thomas Hay Clerk D. 415. E. Argyle contra The Laird of Mâ—naughtoun 3. January 1677. IN a pursute at the instance of the Earl of Argyle against the Laird of Mâ—nauchtoun who held some Lands of him Ward for the single avail of his Marriage It was Alledged for the Defender 1. That the Defender had Marryed the time of the Usurpation at which time the Casualities of Ward and Marriage were taken away by an Act and Proclamation of the Usurpers whereby the Defender was secured and was in bona fide to Marry without requireing the Superiors Consent 2. De facto the Superior had consented to his Marriage In swa far as the Defender having given notice to him by a Letter the Marquess of Argyle being then at London that he was to Marry with a Gentle-Woman who is now his Wife the Marquess did return a Letter which was produced showing that he could not but approve his matching with the said Gentle-Woman being the Laird of Ardkindles Daughter and if they should proceed to the Marriage that he wished them well Whereunto It was Replyed That the Usurpers by their Act could not prejudge the Pursuer or any other Superior but that they might claim the Obventions and Casualities that did fall unto them by the nature of their Vassals Right as it was found in the case of Sir George Kinaâ—rd and the Master of Gray that Lands holden in Ward being Disponed in the time of the Usurpation without the Superiors consent did recognise notwithstanding of the said Act And as to the said Consent It was Replyed that the said Letter was but a Civil Complement without any mention of the Marquess his Interest as Superior and without an express Licence to Marry and Discharging any Interest or pretence that he had to the Defenders Marriage Upon Debate at the Bar and among the Lords Some were of the Opinion that there being no Contempt that could be alledged of the Superior and the Vassal having so much reason to think that he needed not his Consent In respect the said Act was a Law de facto and for the time the whole Country being forced to submit to the Usurpers and to acquiesce to their Orders That Communis error facit Jus and quaevis causa excusat as to Casualities arising upon feudal Delinquency or Contempt And the Superiors Interest that was intended of the Law was not that he should have a Sum of Money but that his Vassal should not Marry without his Consent and match with Families either disaffected or in which the Superior could not have confidence and the avail of Marriage is penal in case the Vassal should either Marry without the Superiors consent or should refuse to Marry a person profered by the Superior to be his Wife Upon the foresaid Considerations they were of Opinion that the Defence was relevant and that there was a great difference betwixt the case of Recognition and Marriage in regard the reason of the Decision in the case foresaid was that the Vassal did upon the matter contemn the Superior after the Kings Restitution seing he did not apply for a Confirmation Whereas the Vassal being once married it were to no purpose to desire the Superiors Consent On the other part some of the Lords argued that the single Avail is not penal but only the double seing the Vassal attaining to the age of marriage if he should die unmaryed yet the single avail would be due Whereunto It was Answered That poena is in Law when a Person is lyable to pay a Sum either for doing or not doing a Deed and as the Vassal is lyable to the double Avail for refuseing the Person offered by the Superior so he is lyable to the single for not marrying and tho matrimonia are libera so that a Person may marry or not as he pleases yet causative many things are allowed which cannot be directly And it being the design of the Feudal Law and Superiors in giving out their Lands to have still Vassals to serve them and their Family the appearand Heir is obliged by the nature of his Holding to marry or in poenam to pay the avail and if the Vassal
of Teinds Ib. TailÈies 197. TailÈie altered 201. Teinds 202. Teind of Fish Ib. Proving the Tenor. Ib. Decreets for proving the Tenor. 203. Terce Ib. Territorium 205. Testament Ib. Testament Execute 206. Testament and the Wifes part Ib. Testes 208. Third and Teind Ib. Titles of Honour Ib. Titular 209. Tocher Ib. Quaestiones de Tractatu Suedico Bonis prohibitis Vulgo Counterband 210. Posterity of Traitors 214. Transumpts 215. Trebellianica Ib. Trust Ib. Trustees in Infeftments Ib. A Trustee committing Treason Ib. Tutors 216. Tutor and administrator of Law 217. Tutor Ratione Rei Ib. Tutory Ib. V. Re-entering of Vassals 218. Vectigalia Pedagia Ib. Vinco Vincentem Ib. U. Union Ib. Vniversalia Augmentum recipiunt 219. Quando Vniversitas delinquit Ib. W Wadsets Ib. Wadset Heretable or Moveable 220. Wadset proper Ib. Ward 221. Ward Lands 222. Taxt Ward 223. Warrandice Ib. Infeftment of Warrandice 224. Waste Ib. Witnesses Remitted Ib. Witnesses in case of Treason Ib. Women Witnesses Ib. Obligements to employ Sums of Money for Provision of Wives 225. A Womans Jointure Ib. Woods 226. Wrack Ib. Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto Ib. ERRATA in the Doubts c. PAge 2. lin 16 after posterior add first p. 10. l. 21. given read got p. 16. l. penult dele or p. 19. l. ult place the comma after only p. 23. l. 8. right r. burden p. 25. l. 3. was r. is Ibid. dele and. p. 26. l. 13. after Disponner add a me de me p. 61. l. 22. r. in comperto p. 82. l. 11. of Kin r. Heir of TailÈie p. 83. l. 12. after unles add TailÈied p. 84 l. penult Males ls 1. Males are p. 99. l. 19. after use add of p. 102. l. 29. 1. Confirmatione p. 114. l. 7. aditur r. auditur ibid. l. 41. r. pertinebat p. 122. l. 20. nor r. but. p. 130. l. 7 Immediate r. mediate p. 133. l. 10. against the Price r. against the Buyer p. 170. l. 45. r. oblectari p. 184. l. 11. null r. Moveable p. 195. l. â—9 second r. first p 198. l. 8. dele male p. 218. l. 14. after but add If SOME Doubts and Questions IN THE LAW Especially of SCOTLAND A. Adjudications BY the Act of Parliament upon Comprisings or Adjudications for a Sum of Money The Superior may be forced to enter or to pay the Debt Quaeritur If he may be urged to enter upon Adjudications proceeding upon Dispositions in prejudice of the Superior by obtruding a Vassal seing in that case he has not Retractum Feudalem A Vassal having made a Disposition or granted a Bond for Disponing his Lands will the Superiour be obliged to Infeft upon Adjudication Ratio dubitandi That the Superior by the Act of Parliament is obliged only to Infeft Comprysers or Adjudgers being Lawful Creditors and he has Retractum Feudalem paying the Creditor And the Debitor has Retractum Legalem which is not in the case of Dispositions If Lands should be Adjudged from the Appearand Heir of ward-Ward-lands Whether will the Appearand Heirs Marriage be due and affect the saids Lands in prejudice of the Adjudgers Answer Albeit that it appears that Marriage should be of the nature of Ward which is not Real as to singular Successors the Superior having only Right to the Duties which he may uplift And ex stilo of a novo damus Marriage is not reckoned amongst real Incumbrances Yet in the case of Thornidikes the Lords has found Marriage Real Whether as Reversions that are comprysed need no Intimation In Respect of the Series of Solemnities that is in Comprysings By which they become so publick that they are presumed to be known to the Person Lyable If there be not Eadem Ratio in Adjudications being now of the nature of ordinary Decreets If at least there be a difference betwixt Bonds and Reversions So that as to Bonds when there is a Competition of Two Comprysers The Posterior intimating should be preferred If Superiors who are Subjects only will be obliged to receive Adjudgers to be their Vassals having Adjudged not for Debt but upon Dispositions And if the King be in another Condition If upon a Disposition The Receiver should obtain Sentence for Damnage and Interest against the Disponer his Heir for Implement If in that case the Adjudger ought to be received Ratio Dubitandi That Primordium inspiciendum est and upon the matter there was not a Debt ab initio If a Reduction Ex capite Minoritatis not being intented at the instance of the Minor Jus Actionis may be Adjudged An Heretable Bond being Adjudged Though there be no necessity of Intimation because Adjudications and Comprysings are publick Rights upon Record Quaeritur If the Debitor paying bona fide to the person to whom he granted the Bond will be in Tuto the said Adjudication not being intimate Answer It is thought that he should be in Tuto seing Intimations are required for Two Effects Viz. Either to compleat the Right be Assignation or to certiorate the Debitor that he make payment to no other person And though an Adjudication be sufficient as to the said first Effect an Intimation is necessary as to the other unless the Debitor be called in the Adjudication Advocation by the Justices IF the Justices may Advocate to themselves Criminal Processes depending before Lords of Regality or other Judges It is thought The Lords of Justiciary cannot Advocat The taking or Advocating Processes from a Competent Judicatory upon Reasons of Advocation being a Power and Prerogative belonging to his Majestie 's Supreme Judicatories of Session and Council And Reasons of Advocation either upon Suspicion or some other Reason meerly Civil or of State belong not to the Cognisance of the Justices but to the Lords of Session and Council If they were to Advocate the Reasons of Advocation behooved to be first discust and what could be the method since all Processes before the Justices are so peremptory That Caution must be found both by the Pursuer and Defender Alimenta COnstituto semel Alimento quo nihil in jure magis favorabile aut magis personale de eo nec Alienatio nec Transactio rité celebratur datur enim ut persona exhibeatur utcunque vitam toleret Mirum igitur Advocatos primi ordinis tanto conatu boatu summa ope annisos ut Judicibus persuaderent aut imponerent asserentes Alimentum uxori constitutum juri Mariti obnoxium esse vel saltem creditoribus Mariti esse integrum illud afficere Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest illud nec juris Ministerio aut fictione transfertur Quum igitur Alimentum adeo personale sit ut superius diximus ut alienari nequit ita ut ab uxore nubendo in Maritum non possit transferri tacitâ quasi alienatione Sublato autem
Marriage and disponed the same to the Son of the third Marriage Quaeritur If the Heir of the first Marriage may reduce that Right as given without an onerous Cause in his prejudice being a Creditor by that Clause of his Mothers Contract of Marriage Ratio Dubitandû It is pretended not to be free Conquest the Father having contracted Debt thereafter above the Sum of that Room Whereunto it was Answered That the said Room was Conquest the price being then paid and the Debt contracted thereafter A Merchant being obliged to provide the Conquest during the Marriage to himself and Wife and the Bairns of the Marriage Quaeritur 1. Whether Conquest being Vniversitas will fall under the Executory of the Bairns though the subject and what will fall under the Conquest be moveable 2do The Conquest being provided so that the Right should be taken to the Husband and Wife and Bairns of the Marriage whilk FailÈieing the half to the Husbands Heirs and the half to the Wifes Heirs Whether the Husband be Fiar and the Bairns only Heirs of provision though the subject be Moveable Though the Husband be Fiar if he can Dispone the Conquest without an Onerous Cause or provide the same to other Heirs in prejudice of Bairns being Creditors by such Provisions The Husband being obliged in these terms to provide the Conquest viz. Lands Heretages and Annualrents and other things And to take the Rights in manner foresaid Quaeritur If the General other things be comprehensive of Moveables there being no mention of Sums of Money or Moveables And it seems that Conquest is to be understood properly of Heretable Interests of which only and not of Moveables Rights are taken And other things may be understood of things Homogeneous and of the same nature that the things expressed in particular are of Viz. Heretable as Reversions Tacks c. If at least Bonds bearing Annualrent though Moveable will fall under the conquest Seing Rights are in use to be taken thereof And by the Law they belonged to Heirs before the statute This and the Four preceeding Questions are in the case of Andrew Bruce and his Conquest during the first Marriage The ordinary Clause of conquest in favours of Wives being of Lands Heretages Annualrents Quaeritur If Bonds being Heretable because Executors are Excluded will fall under the same Answer It is thought not Because the Subject is only Lands Heretages and Annualrents whereupon there is or may be Infeftment And Heretages comprehends only Lands Teinds and such Rights as are real by Infeftment or otherwise or whereupon Infeftment may follow Consensus USV receptum est ut in terrarum aut nominum jurium alienationibus Cessionibus praeter contrahentes alii interveniant pro interesse consensum accomodent subscribant contractibus instrumentis Sed quisnam Consensûs effectus esse debeat ambigitur quibusdam videtur consentientes contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse juxta tritam juris regulam quod approbo non reprobo Alii opinantur cum nihil juris disponant ant tribuant consensum haud extendi ultra id quod actum aut cogitatum viz. Vt si quod jus eo tempore quo consensum adhibuerant suberat aut juris umbra ejus ratione aut praetextu Litem aut quaestionem intentare nequeant Salvâ tamen libertate commercii jura si quae sunt penes alios quam contrahentes potiora acquirendi aut in ea succedendi Iis ex intervallo post facto adeptis consensum haud obesse Cogitandum an ea sit commoda distinctio consentientes si in alia jura postea succedant iis uti posse quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est Qui autem juri in alium transferendo consensit si ejusdem rei jus melius penes alium esse compererit sponte operâ suâ acquirat ex eo adversus eos qui ipso consentiente jus alterum quaesierant agere haud audiendus Nec enim juri nec bonis moribus consentaneum est quod approbavit aliquid moliri aut quaerere quo illud posset reprobare aut rescindere Broomhall contra Lady Darsie Consensus Domini COnsensus assumit naturam actus super quo interponitur Sicut stipulatio quae est stricti juris interposita contractui bonae fidaei Bes Thes liter L. p. 552. Dominus consentiendo non praesumitur juri suo velle praejudicare sed solum obstaculum quod scilicet jus vasalli sine Domini Consensu alienari non poterat removisse Et remissio juris sui non praesumitur nisi verbis apertis de eâ constet Ibidem P. sequen Regula quod Domini consensus juri ipsius nihil officiat procedit tantum in illis juribus quae Domino consentienti competentia separatam habent rationem a negotio cui consensus accedit non autem in his quae ad robur firmitatem actus pertinent Idem p. 554. Consent QVaeritur If an Appearand Heir consent to a Disposition made in Lecto after the Decease of the Granter may another Heir quarrel the Deed upon pretence that the Consenter was not served Heir at any time Ratio Dubitandi The Consent of the Appearand Heir the time of the granting the Right doth so validate the Right that all Heirs are precluded from questioning it And there appears to be the same reason when the Consent is supervenient If the Consent will import Behaving A Person being Infeft in an Annualrent to be holden of the Disponer and in possession by payment of the Annualrent Consents to a Disposition of the Lands Quaeritur If that Consent will prejudge a singular Successor The Disposition being neither Registrate in the Register of Reversions nor the Seasin upon the Disposition relating to the Consent If the Consent of a Person having Right by Disposition whereupon Resignation has followed will prejudge a singular Successor In what cases Consent to a Right will prejudge singular Successors Answer It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged such a Consent may prejudge singular Successors And will amount to an Assignation or Discharge If a Consent of a Party having only Right to a Reversion will prejudge a singular Successor unless it were Registrate Anent Consistories Whereby the Vsefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are Cleared THE Question whether a Judicatory be useful and necessary and therefore to be Instituted If it be not and continued if it be already erected or unuseful and therefore to be suppressed Cannot be defined well à priori but from the nature of the Subject and Causes which are agitate in the Judicatory And if the Subject be necessary and favourable
removed and a solid course taken for obviating the like Abuses thereafter that places be not venal but proposed and disposed as rewards of Vertue to able and deserving Men 3tio The Exorbitancy of Fees and Quotts may be Regulated by taking course anent the presentation to settled places that honest and ingenious Men be presented that a Competency of settled and constant Fees be alotted to encourage honest and able Men to pretend to these places and to enable themselves for them and that they may live creditably and honestly in them and Quotts may be abridged and it may be provided that small Testaments may be free of Quot And the Quots of great Testaments may be limited not to exceed a certain Sum which the Estates shall think reasonable to be the highest Quot The Quot Silver which shall be thought fit to be taken may be employed the Commissaries being satisfied of their Fees to pious uses Consolidation A Person having Right by Assignation to a comprysing of Lands holden of himself whether eo ipso that he has the foresaid Right will the Property consolidate with the Superiority Seing a Comprysing is equivalent to a Disposition and Resignation thereupon And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation and to the said Resignation It seems that in that case there is Consolidation In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him And because he cannot Infeft himself the Law doth introduce Consolidation Ratio Dubitandi is That Consolidation is upon the matter a Seasin of the Property And a Seasin being facti cannot be without some deed of the Person in whose favours the Consolidation is to be made Declaring that he accepts a Right to the effect foresaid If it be not fit in such cases that the Superior should before a Notar and Witnesses Declare that seing he has both a Right to the Property and Superiority in his Person It is his will and intention that the Property should be consolidate with the Superiority And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam When a Person Infeft in the Property of Lands acquires and is Infeft in the Superiority Quaeritur If eo ipso there be a Consolidation of both Rights Item if the Superior succeed as Heir to the Right of the Property Quaeritur If in that case there be a Consolidation so that Dominium directum trahit ad se utile Seing the Superior could not Infeft himself and by his purchasing of the Property he enters to the Right thereof and so the Property is consolidate fictione juris in the same manner as if he had been Infeft If vice versâ The Proprietar acquire the Superiority If eo casu there be a Consolidation of both Rights Answer It is thought not And that Dominium utile cannot draw to it directum without Infeftment by the Superior of the Dominium directum If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer be thereafter Infeft as Heir to his Father in the Superiority of the said Lands which belonged to his Father and his Heirs Male Quaeritur Whether there will be a Confusion and Consolidation of the Property and Superiority It is Answered During his Lifetime there will be a kind of Consolidation seeing he cannot be Superiour to himself But it will cease by his Death so that the Superiority will belong to his Heirs Male and the Property to his Heirs whatsomever If he intends that there should be a Consolidation what course is to be taken to that purpose Answer If as in the case foresaid he was Infeft first in the Property and then in the Superiority he must dispone the Property to a Confident And the Confident being Infeft must resign ad Remanentiam to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors If a Superior should succeed in the right of the Property Quaeritur If there be a confusion of both Rights in his Person Answer It is thought though they may appear to be a Consolidation dureing his Lifetime they are nevertheless distinct Seing the right of the Superiority may be to Heirs Male and the Property to Heirs whatsomever And the said Heirs may succeed Respectivè If the said Superiour being Infeft in the Right of the Superiority succeed thereafter in the Right of the Property what way shall he be Infeft therein seing he cannot Infeft himself Answer It is thought that it is not inconsistent that the Superior may give Precept to give Seasin to an Actorney in his name and for his use If the said Superior intend that the Property should be consolidate with the Superiority what way shall it be done Answer He may direct the said Precept in these Terms for Infefting him And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority The Precept may be in these Terms to give Seasin to the effect the Property may be consolidate with the Superiority To be holden both of his Superior in all time coming in the same manner as if they had never been severed If a Precept may not be obtained in subsidium out of the Chancery for Infefting the said Person in the property to be holden of himself seing he cannot Infeft himself Answer It is thought that a course may be taken upon a Bill to the Lords ordaining the Director to the Chancery to direct a Precept upon the reason foresaid Decreets contra Consortes A Decreet of Reduction Ex capite interdictionis being obtained in foro and the Wife being Liferentrix craving to be reponed because Competent and omitted could not be alledged against her being sub potestate Mariti Quaeritur If she prevail may the Husband crave the benefite of her Decreet Ratio Dubitandi Upon pretence that it is found that the Decreet against him was unjust upon the matter And it cannot be just as to her and unjust as to him This Question may occur in many cases As that of two Heirs portioners one being Major and another Minor And after the Decreet against both The Minor being Reponed and prevailing And of a Decreet against a principal having proponed a Defence of payment and having succumbed in probation And thereafter the Cautioner being pursued and upon probation of the same Defence being Assoilied Corporations QVid juris as to Crafts and other Incorporations and as to Bishops and other single Incorporations if in any case they may oblige themselves and their successors Creditors of the Defunct IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir though they do
Friends should accordingly name two Persons would the Right be valid Ratio Dubitandi 1. Mandatum expirat morte mandantis And if he could not dispone himself on Death-bed much less could he impower another Person to dispone after his Decease 2. Paria sunt indebito tempore fieri in tempus indebitum conferri 3. A Deed cannot be said to be a perfect Deed inter vivos unless it were consummate in substantialibus and the Person Cui is de substantia 4. No Power can be given by a Person who has no Right himself but as Procurator or Commissioner and such Powers do expire with the Granter 5. There can no Right validly be given incertae personae or ex alieno arbitrio in futuro 6. The Defunct could not give Power to the said Friends to dispose of his Personal Estate after his Decease and à pari or majori he could not give such a Power as to his Heretable Estate Mr. John Bayne of Pitcairly Disposition IF a Person get a Right and Disposition omnium Bonorum Whether will he be lyable to the Debt of the Disponer Actio ad Distractum EX Contractu non agitur ad Distractum sed ad implementum Contractus Transactio non aliter annullantur ex defectu Implementi quam si praecesserit monitio ad implendum deinceps culpa implere Debentis Hering de Molend Quaest 11. N. 132. 133. Division of the Duties of Lands betwixt Buyer and Seller BY the ordinary Custom when Lands are sold If it be a Whitsundays Bargain the whole years Duty is assigned If it be a Martimass-Bargain only the half year Quaeritur If they be not assigned Quid Juris as to the said Duties Answer It is thought the Buyer will be in the Case as we have said of a Compryser But the Question will be if the Bargain be made after Martimass and before Candlemass the ordinar Term of Payment of Victual And then it is thought that the Buyer should be in the same case as if the Bargain had been made precisely at Martimass if the price be then payed or in condition to be payed with the Annualrent from Martimass Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass Donatio inter Virum Vxorem A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands and making Faith not to question it Quaeritur If she may so far revock a Donation as to her Husband that she may crave the equivalent Donatio inter Virum Vxorem being ipso jure Null But so that morte confirmatur Quaeritur If a posterior Creditor of the Husbands should Comprise Lands given to the Wife during the Marriage before the Husbands Death will his Death confirm the deed in prejudice of the Creditor The Comprysing being medium impedimentum If at least the Legal will belong to the Wife The Husband not Revocking If the Husband decease without Revocking Quaeritur If the Wife will have Action against the Heir upon that ground that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond Lands being Disponed by a Husband to his Wife and thereafter he having Disponed the same to another person in Lecto aegritudinis Quaeritur If his Heir may question the Right in Lecto Ratio Dubitandi It is not made in his prejudice but of his Wife And the Revocation is only in favours of the Receiver of the Disposition A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife Quaeritur If eo ipso he has Revocked Tacité the said Donation Ratio Dubitandi The Donatio inter virum uxorem is Null and morte tantum confirmatur And before it became valid the said impediment interveened And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way his Silence and not Revocking is upon the matter fraudulent and in prejudice of the Creditor It is thought That it is to be considered if the Debitor or his Heir have no other Estate out of which the Creditor may be satisfied In that case the Creditor may have recourse against the Lands Disponed to the Wife If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted Ratio Dubitandi That if the contracting the Debt after such Donations import Revocation it ought to be only in favours of the Creditor and not of the Heir who ought to be in no better case and the Wife's Action against the Heir may be upon that ground That out of the Estate belonging to her unquestionably as to the Heir the Debt whereto the Heir is Lyable is satisfied A Woman having made a Disposition to a third person to the behoof of her Husband and having ratified and made Faith before a Judge Quaeritur If she may question the said Deed as being Donatio inter Virum Vxorem notwithstanding her Oath Answer It is thought she may And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis otherwise eâdem facilitate that a Wife is induced to give she may be induced to Swear and the Law should be Elusory And such Oaths ought to be understood only that they are not compelled and that they shall not question such Deeds upon that head But not in relation to any other Ground whereby they may be questioned As v. g. Minority and that the Wife has Curators not consenting And that the Husband if she has no other is Curator and cannot Authorise her to any Deed in rem suam And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands Donatio mortis Causa THere being a Donation inter virum uxorem Quaeritur The Donator Deceasing and the Donant Surviving and not Revocking whether will the Gift be Valid Ratio Dubitandi Such Donations aequiparantur Legatis being always Revocable And Legatars Deceasing before the Testator their Legacies are void Donatio non acceptata IF a Donation be made but not accepted Quaeritur If a Creditor may Compryse the same and accept Vide Legacy quest 4. Donators upon Recognition and Forefaulture AFter Lands holden of the King had fallen under Recognition they fell also under Forefaulture and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition and thereafter another Gift was given upon the Forefaulture It not being known by the King or his Officers the time of the first Gift that the person Forefaulted had committed Treason Quaeritur Which of the Donators should be preferred Ratio Dubitandi That Recognition is but a Casuality And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure And all Casualities seem to be
Extinct and consolidate with the Right of property And the Right upon Recognition does not belong to the Superior ipso jure before Declarator Mcghie of Larg Duels and Hame-sucken IF Hame-sucken or Fighting Duels be Capital though no person be killed Qui in Duello occubuerunt in Locis religiosis sepeliri non possunt Perez Lib. 2. Tit. 1. E. Emancipatio IF by our Law Children after twenty five years may Emancipate themselves and live by themselves and leave their Father and his Family Cogitandum And the custom of other Nations is to be considered Whether if they go out of the Family without the Fathers consent they may claim a Bairns part Contractus Emptionis a Pretio incipiens aut Mensura CVm emitur fundus tot jugerum an si plura reperiantur jugera Emptori cedant an venditori Respondetur Cúm pretium formatur a Mensura ab ea Contractus incipit in singula jugera certum pretium promittitur quod superest ad venditorem redit quod deest ab eo suppletur Sin Contractus incipit a specie licet demonstrative aliqua mentio de modo agri fiat ut si vendo fundum centum jugera continentem si plura reperiantur cedunt Emptori nec ad augendum pretium tenetur falsa enim fuit Demonstratio quae non nocet Thes Bes in litera K. 9. verbo Kauffen p. 453. What way the Buyer may be urged to Enter IF the Buyer lye out what will be the remedy for the Superior Answer He may pursue to hear and see him decerned to Enter and to pay Composition And without prejudice of that Decerniture if he continue to ly out To hear and see it found that the Lands are in Non-entry And that the Superior as to Casualities shall be in the same case as if he were Entered Entry of Assigneys upon Resignation IF the Alienation and Resignation be Assigned Quaeritur If the Superior may be compelled to enter the Assigney seing both are in favours of Heirs and Assigneys Answer Negativé Unless a Composition be payed both for the Buyer and for the Assigney Seing the Superior is not obliged to Enter any but the Buyer and his Heirs And though the Right be to Assigneys it is to be understood such as the Superior should be satisfied with And the Superior is not to be in a worse case than if the Buyer had been Infeft and had Disponed And there is in this case Fictio brevis manus Entry upon Resignation by a singular successor WHat way a singular Successor in the Right of Superiority may be urged to Infeft upon Resignation in his Authors time Seing he does not represent him as Heir And is not bound to the Buyer by Contract or quasi Answer There is obligatio in rem as in the case of Servitudes and Annualrents And he may be pursued summarly to hear and see him decerned to Enter the Buyer And to that purpose to give him a Charter of the Tenor Exhibited And upon a Bill the Director to the Chancery may be ordered to give out a Precept in subsidium Liferent Escheat A Vassal having granted a subaltern Right being Year and Day at the Horn Forfaulteth only his own Right of Liferent without prejudice to the Sub-vassal Whereupon it may be Quaeried If a Vassal has Disponed his Right but so that the Party Acquirer is not Infeft will notwithstanding the Disponers Liferent fall Answer Affirmativé And the Ratio Dubitandi is of no weight Viz. 1. A Tacksman though the duty be not proportionable will not be prejudged 2. If the Receiver of the Disposition be Rebel per annum and the Lands hold of the King The King will get eodem tempore Two Liferents of the same Lands Viz. One by the Rebellion of the Disponer and the other by the Rebellion of the Receiver For as to the first a Tacksman has a Real Right and Interest which militates against a singular Successor And as to the second there is no Inconvenient that the Superior should have the Liferent of his Vassal And if the King be Superior that he should also as King have the Liferent of his Subject And any benefite may accrue to him by the Disposition and Warrandice thereof during his Lifetime If a Person Infeft in Liferent be denuded by an Assignation of the Liferent which is only habilis modus in respect Liferents constitute by Infeftment are personal and cannot be transmitted by Resignation Quaeritur If the Liferenter be Year and Day Rebel after the Assignation will the Superior have Right to the Duties A Lady Tercer or Tennent by Courtesy their Lands holding of another Superior than the King and they not being Vassals to him Whether will their Liferent fall to the King being year and day at the Horn A Person being denounced in April and continuing year and day at the Horn Quaeritur quando dies cedit of the Liferent falling to the Superior of the Lands set to Tennents And whether or not the Superior will be in the case of a Liferenter surviving the Fiar So that he will have right in the case foresaid to the full Duty of that year that the Liferent falls per lapsum anni diei Quid Juris Where the Rebel laboureth himself will he not be lyable to the Superior for the Duty of that Year as if he were a Tennent If these Obligements that are ordinary in Dispositions to be holden of the Granter and Superior That while the Buyer holds of the Granter his Heirs and Successors shall be entered gratis and shall not be lyable to Non-entry nor Liferent Escheat which are gifted to them now as then Will bind singular Successors And what way they may be made real if there be any Question Answer It is thought that they may be inserted both in the Charter and Sasine It may be contended that these being upon the matter Servitudes upon the Superiority may be constitute as other Servitudes without Write specially seing it is intended they should hold either of the ways and that the Right in the Person of the Disponer to be holden of the Superior is in effect to the Buyers behoof until they be confirmed And Reversions were Real even before the Act of Parliament anent the Registration of the same Cogitandum If at least Comprisers will be lyable to such Obligements Seing they comprise only such a Right as their Debitor had and they are in use to comprise all Contracts and Dispositions and therefore ought to be lyable in rem to all Obligements upon the Debitor and his Successors relating to the Lands comprised To consider If there be not a Difference betwixt Obligements as to Liferent Escheat and others these as to Liferent Escheat being contrary to Law and such as give occasionem peccandi and if such an Obligement be not sustained to whom will the Liferent belong Whether to the mediate Superior seing the immediate has renounced or to the King as ablatus ab
thereupon the half of the Estate To see the Decreet Jus Facultatis ATtendendum an quis aliquid faciat jure facultatis an jure servitutis Facultas enim non minus aliis quam nobis patet quia usus qui alii magis ex occasione quam jure conting it Servitus non est nec in eo temporis Diuturnitas quidquam prodest nisi accesserit prohibitio praescribentis patientia ejus contra quem praescribitur Jus Fluviat p. 756. N. 71. sequent Personal Faculty A Person giving a qualified Right reserving Liferent and a Power to dispone Quaeritur If that Faculty may be comprised as a Personal Reversion Quae Facultatis sint ALiqua Dicuntur esse facultatis quorum Libertas a Jure publico permissa est quae non pariunt jus deducibile in Judicium hoc casu nec nos contra alios praescribimus nec alii contra nos Exemplum est in Leg. viam 2da de via publica Aliud Exemplum est in facultate privata quae nullam antecedentem habet causam obligandi ut si Rusticus sua sponte nulla praecedente causa per multos annos Domino certis temporibus capones attulit ex hoc actu merae facultatis nulla oritur Domino actio Quomodo intelligendum Facultati non praescribi ALiqua dicuntur esse Facultatis ad acquirendum novum Jus vel novam actionem vel etiam ad eam Conservandam atque ita pariunt Jus deducibile in judicium Et hoc jus licet sit in libera potestate acquirere volentis non tamen est in potestate illius contra quem acquiritur vel conservatur ut recusare posset Sic adire haereditatem est merae facultatis tamen tollitur praescribitur spatio 30 annorum ergo juri offerendi reluendi praescribitur Hering de Molend quaest 21. N. 17. sequen Jus publicum tribuit cuivis de Populo ut uni ex multis nec privative ad alium etsi ad singulos inde aliquid commodi perveniat Inde illud quod dicere solent Facultati non Praescribi Dicitur de his quae à natura aut publico Jure tribuuntur itaque quocunque tempore nemo praescribit ut qua ierit in publico nullus alius commeet etsi nunquam ea commearit Ea quae de tali facultate dicta sunt non recte Traducuntur ad ea quae proprii privati cujusque Juris sunt id enim Jus est quod ad privatum quemque pertinet privativé ita ut non ad alium Omni siquidem Juri aut facultati quae competit privato cuiquam privativé potest praescribi Idem Ibid N. 20. Faculty reserved to dispone IT being ordinary that a power is reserved by these who Dispone Lands especially to their Friends to Redeem or Dispone or Burden at any time dureing their Lifetimes Quaeritur Whether Lifetimes should be understood civily during their Liege Poustie Item Quaeritur If the Receiver of the Disposition be Dead and the Lands in Non-entry whether the Disponer may notwithstanding Dispone and resign by vertue of the said Power Ratio Dubitandi The said Faculty is upon the matter a Heretable Commission and Procuratory which cannot be Execute post mortem mandantis and there is no person that has the Right Established in his person so that it may be resigned Item If the Lands be in Non-entry and Ward will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior Ratio Dubitandi The Defunct by whose Decease they accrue was the Superiors Vassal And though the Disponer has the same power yet he should have used it debito tempore while the Vassal was on Life and before the pursuer had jus quaesitum On the other part the said power is of the nature of a Regress so that quocunque tempore as in the case of regress Re-entry may be desired by vertue of the said Faculty A Charter being to be granted to a person conform to the said power That Clause Quaequidem pertinuerunt what way it is to be conceaved and if mention should not be made of the person who is Infeft for the present though he be not the person to whom the Right was Disponed with the said Power But either an Heir or singular Successor If the Faculty to Dispone be not upon the matter a Reversion materially and as to the effect of the same so that the person having the same may Dispone albeit he has not jus in re And albeit the Heretor be either Dead or Forfaulted As an order may be used against an Appearand Heir or against the King or his Donator in the case of Forfaulture or ultimus Haeres A Person who had the Faculty foresaid having by vertue thereof Disponed but deceasing before Resignation Quaeritur What way the Disposition shall be made effectual seing the Faculty was personal to himself Fee WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent and to the Bairns in Fee Which FailÈieing to the Father and his Heirs Quaeritur Before there be Children where is the Fee And if it be not fit to take it to the Father to the use and behoof of the Children which FailÈieing to himself and his Heirs When it is intended that by Contract of Marriage the Parents should be only Liferenters and that certain Sums should be provided to the Children so that they do not represent them Quaeritur What way the Fee can be provided to the Children that are not in being Answer The Father may be infeft in Liferent for himself and in Fee for the use and behoof of his Eldest Son and his Heirs Which Fee is to be to the Father and his Heirs to the use foresaid And they are to be obliged upon the Existence of a Son to denude in Favours of him and his Heirs By Contract of Marriage betwixt Knockdaw Sir John Kennedy and Gilbert Kennedy of Girvanmayns The said Sir John having married the said Gilbert's Daughter The said Gilbert's Lands and Estate are disponed to the said Sir John and his said Spouse and the Heirs betwixt them which failÈieing to such of the said Gilbert's other Daughters as he should at any time appoint which failÈieing to the said Sir John's Heirs and Assigneys whatsomever and now the said Sir John being deceased and having a Son of the Marriage Quaeritur Whether the Fee did belong to him so that his Son may be served Heir to him in the Estate It is Answered That in the case of the Duke and Dutchess of Monmouth The Conception of the TailÈie not being unlike it was thought the Dutchess was Fiar albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife and the Heirs of Marriage which
having survived Quaeritur If she will be Fiar of the said Bond A Person having Infeft his Creditors for security of Debts and while they be payed respectively Quaeritur Quatenus They are Fiars whether in solidum or ex parte And qua parte Respondetur They are Fiars proportionally and ex parte effeiring to their Debt Fiars in TailÈies BY a Contract of Marriage Lands being given in Tocher and the Right thereof so conceived that they were Disponed to the Husband and the Gentlewoman in Conjunct-fee and Liferent and to the Heirs of the Marriage Whilk FailÈieing to the Heirs of the Husband his Body in any other Marriage Whilk FailÈieing to the Womans Heirs and Assigneys whatsomever Quaeritur who is Fiar Answer That though where there is but one degree of Substitution viz. FailÈieing the Heirs of the Marriage the Womans Heirs The Woman is Fiar Because res pertinet ad eos quorum haeredibus providetur But where there are diverse Degrees of Substitution as in this case the Husband cujus haeredibus maxime prospicitur It is thought should be Fiar Seing not only the Heirs of the Marriage gotten by him But in the next degree his Heirs of any other Marriage are substitute and in ultimis tabulis The Wifes Heirs and as Heirs of Provision to the Husband and the Husband having given a Jointure it is thought to be in Lieu of the Tocher and to belong to him as Fiar and not as simple Liferenter A Bond for a Sum of Money being granted to a Man and his Wife and longest Liver of them Two and to their Heirs and Assigneys secluding Executors And the Wife having survived the Husband and a Bairn being likewise on Life of their Marriage Quaeritur Whether the Relict will be Fiar If a Bond be granted to Two Brothers in the terms foresaid and one of them deceasing having left Children and the other surviving having also Children Quaeritur who is Fiar Fictio Juris QVaeritur A Debitor being disseas'd what way can the Compriser be Infeft Answer The Decreet of Reduction putteth the Debitor quoad the Creditor in the same case as if he had not been denuded Fictione Juris Fiscus IN Dubiis ubi non est plena Probatio fisco non favendum Besol Thesaur liter L. p. 556. vide Auctores ibi citatos Commissa Fisco MErces committuntur Fisco ex causa fraudati vectigalis ipso Jure ita ut statim desinant esse ejus qui deliquit itatamen ut ob contradictionem partis requiratur sententia declarativa De Jure fluminum 206. Flumina FLumina a Rivis distinguuntur magnitudine vel aestimatione circumcolentium Hering de molendin Quaest 15. n. 4. Flumina Publica FLumen publicum est illud quod perenne est Th. Scipman de Jure Fluminum seu jus Fluviaticum p. 3. n. 20. Flumina publica sunt in potestate patrimonio Principis de Regalibus sunt idem P. 5. n. 52. Publica sunt superiorem non recognoscentis Majestate fulgentis Ibid n. 7. quorum usus omnibus Expositus est Flumina publica sunt quae sunt perennia de Regalibus plerumque navigabilia quae navigabile aliud faciunt ad principem pertinent Vsu vero patent singulorum commodis utilitati non etiam commercio seu Juri emendi acquirendi alienandi Quaest eadem Num. 10. Flumina Censitorum vice funguntur ex privato in publicum addicunt ex publico in privatum dum uni adimunt alteri addunt Jus fluviat p. 5. 24. c. Forfaulture A Subvassal being Forfaulted Whether His Majesties Donator will have Right to the Estate free of Servitudes and Rights not consented to by the immediat Superior Caldwells Relict contra DalÈiel When the Lands fall in His Majesties Hands by Forefaulture or otherways by the suppressing of Benefices or any other occasion if there be Vassals holding of the same May he Dispone the saids Lands and Superiorities Ratio Dubitandi That a Superior cannot interpose Answer There is a difference betwixt Vassals holding Originally of His Majesty and these who hold ab initio of other Superiors As to the first they cannot be prejudged so as to be put to hold of any other than His Majesty and to be more remote from the Fountain The others are not prejudged seing they are put in the condition they were in formerly and as the former Superior might have Disponed the Superiority and resigned so His Majesty cannot be denyed the same Power and His Majesties Disposition is Fictione Juris equivalent to a Resignation seing there is no other Superior in whose hands the King can resign If a Subvassal to a Vassal holding of the King be Forefaulted for Treason will subaltern Rights granted by him fall under Forefaulture Seing it is pretended that such Forefaultures belong to the King not as Superior but Jure Coronae and as Prince noxa caput sequitur and the King has no prejudice having a Vassal Yet I think that these Rights should fall Quia resoluto Jure Dantis resolvitur Jus accipientis And if the Subvassal should Forefault his Lands by Recognition his Vassals Right would Forefault And it is against reason That Treason being Crimen gravius The Forefaulture and poena should be Levior And Treason is Crimen feudale and against the King as Superior paramount and as the betraying of a mediate Superior will import Forefaulture not only of the Subvassal but of his Vassals there is the same or greater reason that Treason against the King should have the same effect and the reason that the Forefaulture of the Subvassal should belong to the King is because the Crime is committed against him as highest Superior If the Kings immediat Vassal should confirm the Inferior Rights if there be any alteration of the case Seing the King is in place of the Vassal because the Crime is committed against the King as Superior and he should be in no better case and the Vassal if he were to have the benefite of the Forefaulture could not Question the said Rights If a person Infeft in Liferent be Forefaulted for Treason will the Liferent expire though he survive Seing he is nullus and after Treason doth neither transmitt cedendo nor delinquendo A Person being Infeft in Trust and to the use and behoof of another Quaeritur If he commit Treason will he Forefault the Right of the Lands to His Majesty Seing albeit his Right be to the use and behoof of another yet he is Vassal and as the French say he is homme vivant confisquant and there is no reason the Superior should be defrauded and the granter of the Right is to be blamed that he trusted such a person By the English Law though a person Dispone for Onerous Causes he is not Lyable to warrand unless he be expresly bound otherways the acquirer is presumed to take his hazard But with us no Warrandice is absolute Warrandice Quaeritur If a
Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents The Vassal of a Subject having granted a subaltern Right to be holden base and the same not being confirmed by the mediate Superior Quaeritur Whether the Subvassals Right foresaid will fall under the Forefaulture of his immediat Superior being Forefaulted Answer It is thought that it will fall under the Forefaulture in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him The Subvassal his Property would have fallen under the Forefaulture and there is eadem if not major Ratio in the case of Treason The King being Superior Paramount and the Crime against him being also a Crime against the mediate Superior there being no greater wrong than to be a Traitor to the Superiour Caldwell and Glanderstoun Quaeritur Quid Juris If the mediate Superiour had confirmed the Subvassals Right Quid Juris in the case of Forefalture for Treason And if there be a difference in the case of Forefaulture in Parliament and before the Justices Lands being Comprysed and a signature being past upon the Comprysing but no Infeftment being taken thereupon Quaeritur If the Debitor commit Treason in the interim whether the same will fall under Forefaulture Answer It is thought that it will not seing the Debitor was fully denuded there being no vestige of Right in his person seing he is divested by the Comprysing as if he had resigned and the Superiour had accepted the Resignation Quaeritur Quid Juris If there were only a Comprysing without a Signature And the Question may be more general Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser by any Deed whereupon Recognition or other Forefaulture may follow in favours of the Superiour otherways a Malicious Debitor may of purpose do such a Deed to prejudge his Creditor To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superiour And a Comprysing whereupon nothing has followed Item If the presenting of a Signature on a Comprysing to the Exchequer be equivalent to a Resignation in the Superiours hands and accepting Item Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation If after a Person is Forefaulted an Estate should fall to him as appearand Heir to any person he being yet on Life whether would the same pertain to the King or to the next Heir as if he were Deceased Seing he is nullus being Forefaulted and is not in a Capacity to be Appearand Heir If a Forfaulted person have Children that are ante nati Whether or not will they be prejudged by their Fathers Forfaulture as to any Capacity or Estate belonging to him Whether will they succeed to their Grandfather or any relation upon the Fathers side Seing their Blood is corrupted and they cannot represent their Father being nullus as said is A person having Married an Heretrix and being thereafter Forfaulted Quaeritur If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother 2do If the Mother should not dispone in her oun Lifetime Whether her Estate will fall to the King by the incapacity of the Children being her appeirand Heirs An Heretrix being Wife to a forfaulted person If al 's long as he liveth the King will have right to the Mails and Duties Jure Mariti 2do If she may dispose of her Estate without his Consent seing he is nullus in Law And yet is her Husband the Marriage not being dissolved with the Forefaulture A Father having Disponed his Estate to his Son with Reversion and power either to Redeem or Dispone Quaeritur If the personal faculty may notwithstanding be comprysed during the Fathers Life and may be used even after the Death of the Father There is the same Question as to Forefaulture A Woman being Heretrix of Lands in Scotland and the same being TailÈied to the Heirs of her Body whilk FailÈieing to certain other Heirs with the ordinary Clauses irritant that she and they should not have power to prejudge the TailÈie Quaeritur If her Husband being Forefaulted the Blood be so corrupted that her Children cannot succeed and if their Interest of Succession will fall to the King If a Tack set for an Onerous Cause and for payment of Debt will prejudge the Donator to the Forefaulture The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him if thereafter the Debitor should be Forefaulted and the Creditor reduce the said Right what way shall he be Infeft seing he cannot Compryse or Adjudge the Debitor being Forefaulted There being a Minute of Contract anent the selling of Lands and the Buyer being thereafter Forefaulted Quaeritur If the King or his Donators will have Right to the said Minute in the same manner as the Buyer or if the Seller can raise a Declarator to be free of the Minute Seing albeit where there is a clear Right and Interest belonging to a person Forefaulted the same will pertain to the King yet when a Bargain is only in fieri and there are diverse obligements upon the part of the Forefaulted person the Seller ought not to be in worse case and in place of a Subject have so powerful an Adversary The Earl of Tarras and the Heirs of Walter Riddel The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines but not being Infeft but base before the Forefaulture Quaeritur If by his Forfaulture these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard Answer It Is thought not Seing any Right Cesnock had to the saids Lands was not as the Kings Vassal In which case the subaltern Rights would have fallen and Castlemaines remaining the Kings Vassal Cesnock had only the Right of property holden of Castlemaines And as to Castlemaines Right holden of the King Cesnock had only Jus ad rem by the Contract or Disposition so that thereby the King by the Forefaulture may come to Castlemaines Right and force him to denude himself of the same but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews who did confirm the subaltern Rights granted by the saids Earles Quaeritur Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle notwithstanding the confirmation granted by the Bishops In respect the saids Rights are not confirmed by the King In Answer to the said Querie It is thought that the saids Lands do not fall under the Earles Forefaulture for these Reasons 1mo The Earle of Argyle did Forefault only
what did belong to himself Nam noxa caput sequitur and the saids Lands did not belong to him in Property but only in Superiority And there is a difference betwixt the said case and the case of Lands holden immediatly of the King himself which by the Forefaulture of his Vassal are Forefaulted and does return to the King as he did give them pure and free and without the burden of any other Right granted by the person Forefault but such as the King did consent to and confirmed Whereas in the case in Question The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop who stands still His Majesties Vassal And as his own Right is not prejudged by the said Forefaulture so the Right of the sub-Vassal consented to and confirmed by him is not prejudged by the said Forefaulture 2do Lands holden of the Bishop waird or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle being Disponed by the Earl to be holden of himself will not recognosce by the Earles Deed in Disponing the Superiority or otherways if the Bishop had confirmed the Subvassals Right And there is the same reason in the case of Forefaulture in respect by the common Law when Lands do fall and are confiscat they fall to the immediate Superiour And by our custom in the case of Treason the King has that Priviledge that the Lands which are Forefaultare Confiscat and Forefaulted to him because the Crime is committed against him And therefore the Lands holden of other Superiours do Forefault to the King no otherways than they would belong to other Superiours if the Forefaulture did belong to them In which case the confirmation of the Subaltern Rights by the immediate Superiour of the person Forefaulted would save the Subaltern Rights that they could not fall under Forefaulture 3tio By the Law and Custom of the Kingdom it is lawful Subinfeodare and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio seing res devenit ad aliam causam resoluto Jure dantis resolvitur jus accipientis Yet in the case of confirmation by the Bishop there is a great difference seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it but has another Foundation whereupon it does subsist Viz. The Bishop's own Right and the confirmation granted by the Bishop and specially in this case seing it appears by the confirmation that the same is granted not to gratify the Subvassal and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out but in order to the Bishop's own Interest and Advantage In respect by the confirmation there is reserved to the Bishop beside the Feu-duty payable to Argyle a Feu-duty to himself and his Successors with a Clause irritant if it be not payed And fictione brevis manus the Feuar is in the same case as if the Bishop ab initio by one Charter had Disponed the saids Lands to the Earl of Argyle in Superiority and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter and to the Bishop the said other Deuty In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Property granted by the Bishop himself nor the Bishop of the said Additional Duty 4to By the Acts of Parliament K. Ja. 2d and K. J. 4. anent the setting of Feues and by custom ever since The setting of Fews was so speedful and necessar in order to the policy of the Kingdom That Vassals are not only allowed but invited to set their Lands in Feu which in effect is a general confirmation of all Fews so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same and the said Barony being of a large and vast bounds albeit it was Fewed to the Earl of Argyle yet for the labouring and bringing it in it was necessary to set it in parcells to other Fewers holden of him and the Fews in Question are granted before the Year 1606. A Subvassal holding of a person Forefaulted and his Right not being confirmed either by the Forefaulted persons immediat Superiour or by the King Quaeritur If his Right will fall under the Forefaulture Ratio Dubitandi Licebat infeodare noxa caput sequitur and yet is thought it will fall under the Forefaulture Because resoluto jure dantis c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa A Superiour being Forfaulted and his Vassals Right not being confirmed and so falling Quaeritur If His Majesty should confirm the Vassals Right if that will be habilis modus to secure against a poster or Donator Ratio Dubitandi The Vassals Right being altogether extinct by the Forefaulture there is nothing to be the subject of a confirmation which cannot be of non entis and the Vassal should have obtained a Gift upon the Forefaulture And contra The Vassals Right not being null of it self but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour because he did not consent to the same his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator If after Forefaulture His Majesty having granted a Remission the person Forefaulted is redintegrated to his Estate as if the Forefaulture had not been or if he should take a new Right upon the Forefaulture When a Forefaulted person has Right to succeed to any other person as Heir so that not only his own Estate but what would belong to him if he had entered Heir would fall to the King by his Forefaulture Quaeritur will the King be Lyable to the Debts of the Defunct seing he does not succeed to the Traitor 's own Estate and Patrimony but in haereditatem quae est nomen universitatis both as to the Debita and Bona and there is no reason that the Defuncts Creditors should be prejudged unless they had been in culpa either themselves or their Debitor His Majesty having presented upon Forefaulture a Vassal If that Superiour should be thereafter Forefaulted Quaeritur If the Feu not being confirmed will fall under his Forefaulture Ratio Dubitandi The Feuer is in the same condition with other Subvassals so that if he do not apply for confirmation he is lyable to the same hazard And yet on the other part it may be thought that the reason why Confirmation is necessary is because when Lands return to the King they return as they were given free of all Rights and Burdens but such as the King did
and her foresaids in an Annualrent effeirand to the said Sum out of his Estate beginning the first Terms payment at the Term of Whitesunday or Martinmass after the FailÈie of Heirs of his Body in case they faill with this provision that in respect the said Infeftment is not to be effectual but in the case foresaid it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription And that the same shall not Commence or begin to run until the said Right become effectual in the case foresaid Publick Infeftments IF an Annualrent to be holden of the Disponer be confirmed by the King Quaeritur If that Confirmation will make it publick If an Annualrent be Disponed out of diverse Lands to be holden of the Granter and a Decreet of poinding of the Ground be got as to some of the Lands will it make the Right publick as to others Inhibition INhibitions upon Bonds or Contracts if they import only that nothing should be done in prejudice of the same and execution thereupon So that the person having reduced upon the Inhibition cannot make use of the same to sustain any Right but such as Depends upon the Ground of the Inhibition Both the person Inhibited and the person receiver of a Right being out of the Countrey the time of the Inhibition Quaeritur If the Right be Lyable to Reduction Ratio Dubitandi Both the Inhibited and the party Receiver should be certiorated and put in mala fide And as the Person Inhibited is not certiorate if he be out of the Countrey if the Inhibition be not Execute at the Peer and Shoar of Leith so there is eadem Ratio as to the Lieges An order being used upon a Conventional Reversion or Legal against 〈◊〉 Person Inhibited Will the Inhibition affect the Renounciation granted by him seing he may be forced to give it and it has Dependence upon a Right before the Inhibition If an Inhibition being Execute against the Debitor only and being in cursu only as to the Inhibiting the Leiges where the Lands lye being at a great distance and Intimation in the mean time to the party who is about to bargain with the Debitor will put the said party in mala fide So that there may be a Ground of Reduction Ex capite Inhibitionis against the party Inhibited and that the said Right is fraudfully made and accepted without a necessary cause in defraud of the Creditor and after intimation of his Diligence A whole Barony of Land being affected with an Inhibition and being thereafter Disponed in several parcels to diverse persons If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts for his Relief they being in rem correï debendi Vide Annualrent Quaest 1ma If after an Inhibition is Registrate and Fourty Dayes are past if the Creditor getting notice that his Debitor has Lands within other Shires may inhibite the Leiges there and Registrate within Fourty Dayes And if in that case the Debitor must be himself again certiorate By a Minute an Estate much incumbered being Disponed and the price being agreed upon at a certain rate per Chalder or 100 Merks But so that the Incumberances should be purged by the price pro tanto and any Ease by the Creditors should redound to the Seller and the whole incumberances being purged the Buyer should Compt for the superplus of the Free-Money and should pay beside 20000 Merks after all is purged Quaeritur Whether the Benefite of the said Contract can be affected with an Inhibition or with Arrestment at the instance of Creditors of the Disponer Ratio Dubitandi The said Benefite is not Liquid If Inhibition does affect Lands acquired after Inhibition Answer Affirmative The Debitor not being Discharged to Dispone the Lands he has presently but simply his Lands and Estate If at least it affecteth such Lands as are acquired within the Shire where the Inhibition has been used Quaeritur If Inhibition doth affect Bonds though Moveable by the Act of Parliament so that the Creditor cannot Assign the same Quaeritur If Inhibition doth affect Bonds so that the Creditor cannot thereafter Assign the same Ratio Dubitandi That it is thought they affect only real Estates and Interests and there is no mention of Bonds and Debts which are Personal and they come not under the General of Goods and Gear which are real things Whereas Debts are Nomina and Entia Juris Rationis If Inhibitions affect Lands acquired thereafter The Ratio Dubitandi is No Diligence can affect non Ens and what did not belong to the Debitor And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye much less can it affect Lands that has not Situm as to the Debitor and does not pertain to him and the narrative of the Inhibition is that the Debitor intends to defraud his Creditor by putting away his Lands which does not militate as to Lands which he has not then A Bond being granted after Inhibition and thereupon the Debitor being denounced and his Escheat Gifted Quaeritur If the Horning and Gift may be Reduced ex capite Inhibitionis Ratio Dubitandi That the Ground being taken away the Superstructure falls so that the Bond being reduced the Horning doth fall Contra The King is not concerned upon what Ground the Rebel is at the Horn if the Horning be valid and formal and the Inhibition doth import only that the Debitor should not give any voluntar Right whereupon his Estate which is the subject of Execution for Debt may be taken away but not if he should commit Crimes either of Treason or should be Rebel or do deeds wherupon Recognition may follow That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture Liferent-Escheat c. George Marshal contra Inhibition upon Teinds IF Inhibition upon Teinds interrupteth prescription without a citation specialy where the possessor is in possession by a Right If Inhibition puts a party bruiking by a Right in mala fide so as before his right be reduced to be lyable for bygones after the Inhibition Tweeddale If to the effect foresaid he be in mala fide because being Commissioner for the Earl of Lauderdale he prevailed upon the same Grounds against Oxenford Insinuatio DOnationes quae excedunt summam quingentorum solidorum sive aureorum insinuandae sunt ut effusae donationes coerceantur ne fraus struatur Creditoribus falsis donationibus Insinuatio est publicatio donationis apud acta vel ejus quod agitur apud Judicem in scripturam redactio Perez Inst Lib. 2. tit 7. Instance BY the common Law of the Romans and by the custome of France Instantia perit after three Years as to all effects of it v. g. Interruption of Prescription But without prejudice of the Action if it be not
Titio nec imputandum nec officit Patrimoniorum siquidem conditio Jura viduae liberorum legibus constituuntur nec aequum est ea ex arbitrio haeredis pendere aut ambulare Porro haereditatis delatio Facultas adeundi aliis casibus nedum hoc haud parum operatur haerede enim perduelli Majestatis reo haereditas etiam non adita amittitur Fisco quaeritur Legitimation per subsequens Matrimonium A Person after his first Marriage of which he had Children having Married again and having diverse Children by the Woman Married to him in that second Marriage elder nor the first Children which are thereby legitimate Quaeritur Whether the Eldest Son with the second Wife will be preferred to the Son of the first Marriage as to the Right of Succession Ratio Dubitandi The first Marriage was Contracted Spe and in contemplation that the Children of that Marriage would succeed and the Eldest Son by his Birth had Jus primogeniturae as the first Lawful Son which could not thereafter be taken from him e contra the Son of the second Marrriage the time of the Fathers Death which is to be considered as to the question of the Succession is his Eldest Lawful Son Cogitandum If a Person may Marry on Death-bed in order to the Legitimation of Natural Children in prejudice of his Agnats who would otherwayes succeed Marriage and Legitimation THere being a Declarator intented to hear and see it found that the Children were Lawful in respect there was a promise and Copula Quaeritur If the pursuit being after the Fathers Decease in order to the Succession to the Good-sire the promise may be proven prout de Jure as it might have been before My Lord Neutoun told me that after the Fathers decease it is found not probable by Witnesses Laird of Lauder Lenteratio LEuteratio vide Appellatio in Litera A. Libellarius Contractus LIbellus sive Libellaria est contractus quo interveniente scripturâ res immobilis venditur certo pretio certa insuper pensione in singulos annos ea lege plerumque addita ut stato condicto tempore renovetur denuo numerato pretio certo vel arbitrario Hering de molendin q. 29. n. 4. Est Italis usurpatus dicitur a scriptura Libello seu brevi charta Ibidem n. 6. Liberi INdefinito Liberorum nomine censetur actum de natis tempore Contractus non de nascituris Hering de molendin quaest 20. n. 19. Liferenter IF a Liferenter of Lands Stock and Teind having Set the Lands to Tennants for a Duty for the Stock and drawing the Teind and having deceased before Martinmass after drawing the Teind Quaeritur will she be Lyable to the Heir for the half of the Teind Ratio Dubitandi For the Heir That she dying before Martinmass he ought to have the half of that Years Duty And for the Liferenter that she had Right to the Teind after it was separate and collected so that she might have disposed of it and having gotten it it cannot be taken from her and that the Legal terms are to be considered in the case of Debt when dies cedit but in this case nihil debetur but she has Right to the Fruites Teinds and Quota of them in the same manner as the Tennant and as if she had laboured Vide Third and Teind Letter T. Vide Titular litera T. q. 2. vide Milns Litera M. Where Grass Roums are set for payment of a Silver Duty by the Tennent entering at Whitsunday the half at Martinmass and the other half at Whitesunday thereafter Quaeritur If the Liferenter decease after Martinmass whether the Martinmass Duty will belong to her Executor Ratio Dubitandi That the Duty payable by the Tennant entering as said is and going away at the next Whitesunday is payable in respect of the Cropt and proventus of the next Year either of Corns or foetura animalium and it is without question that a Tennant paying a Silver Duty for a Corn-Roum albeit he pay at Martinmass after his entry yet it is payed for the next years Cropt so that the Liferenter can pretend to no part thereof deceasing the time foresaid and on the other part it appears that there may be a difference as to Grass Roums seing the half of the Duty seems to be payed for the profite of the Grass from Whitesunday to Martinmass which falls within the Liferenters Right Quaeritur Quid Juris As to Salt-pans and Milns if the Liferenter have the same in her own hand whether her Right is presently determined by her Death The same being set to Tennants from Candlesmass to Candlesmass If the Liferenter deceased after Lambmass and Martinmass will her Executors have any part of the Duty after Lambmass When Rentals are set in these terms That beside the Rental Duty there should be every five Years a considerable Sum payed as in Contractu Libellario Quaeritur If the Liferenter will have Right to that Sum if it fall to be payed during the Liferent When the whole Estate of a Nobleman is Disponed reserving his Liferent or of a Baron will the Liferenter have Vote in Parliament and Voice in the Election of Commissioners for Shires A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent Quaeritur If Tacks set thereafter by her Husband will bind her Vide Terce quaest ultima Executors of a Liferenter IF a Woman deceaseth after Whitesunday before her Husband will her Executors have Right to a part of the years Farms Liferents DIes as to Liferents when the question is betwixt the Executor of the Fiar and Liferenter cedit at Whitesunday and Martinmass as the Legal Terms Quaeritur If a Bond be to a Man and his Wife the longest liver payable at Lambmass and Candlemass and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at Whitesunday If a Father be Infeft in Liferent in Lands and be content to renounce his Liferent in favours of his Son Quaeritur If it be habilis modus to extinguish his Liferent Ratio Dubitandi He is the Superiors Vassal during his Life and cannot cease to be Vassal without the Superiors consent at least sine refutatione When a Vassal is Year and Day at the Horn if he has granted a Right to be holden of himself what will be the Import of his Liferent If a Liferenter do Dispone his Liferent of Lands or if the same be Comprysed from him and thereafter he be Year and Day at the Horn Quaeritur If the Superior will have Right to the Liferent as if the said Right had not been granted Answer It is thought he can have no other Right than such as the Liferenter had and affected with the said Right If the Liferenter be Forefaulted will not the King have the Right of the said Liferent without the burden of the said Rights And if it be so Quae Ratio
Discriminis Answer The King will have Right to the said Liferent entire and the reason of the Disparity is that Treason is Crimen feudale and when the Vassal Fiar or Liferenter doth Forefault the Right cometh to the King Pure and without any Burden but such as he has consented to Whereas Horning is not Delictum feudale but commune and the Liferent doth not belong to the Superior Jure feudali but Statuto so that he ought not to be in better case than the Rebel Quando Dies cedit as to Liferenters WHen Rent of Lands is Victual the Heretor dying before Whitesunday the Liferenter has Right to the whole Year if after Whitesunday but before Martinmass The Relict has Right to the half but if after Martinmass to no part because Whitesunday and Martinmass are Termini Legales as to the question Quando dies cedit Quaeritur therefore whether when Rent is all in Highland Roums agris pascuis the custom being in some places that the Tennants entering at Whitesunday payes the half of the Rent at Martinmass next and the other half at Whitesunday thereafter Quid Juris as to the Relict the Husband dying after Whitesunday or after Martinmass The same Question is If in the Lowlands in Corn-Roums the Tennant and Master agree that the Duty should be payed in Money by the Tennant entering at Whitesunday the half at Martinmass and the other half at Whitesunday Vasallus Ligius NEmo potest esse simul duorum Vasallus Ligius Thes Bes litera L. p. 597. ad finem Limitation of Fees LAnds being Disponed to a person and the Heirs Male descending of him which FailÈieing to the granter and his Heirs Quaeritur If his foresaids faill what way will the Granter being Superior and his Heirs attain to the Right whether as Heir of Provision to the Vassal or per vi am Consolidationis and by a Declarator that he has Right by the return foresaid and that the Property is consolidate with the Superiority Whether he will be Lyable to the Vassals Debts Ratio Dubitandi The Vassal was Fiar and might Contract Debt and whoever succeedeth to him ought to be Lyable thereto If the Right be granted to a Person and the Heirs of his Body without any further Provision or mention of return whether will the King have Right as ultimus haeres or the Superior Answer The Fee not being simple but limited It is thought that the Superior should have Right seing the Fee is limited And the King cannot succeed but by way of Representation and as haeres ultimus and there can be no Transmission beyond the Limitation But if the Lands be given to a Man and his Heirs whatsomever the Fee is simple and the Granter having simply and absolutely given away the same he can pretend no Right to the same and the King cometh under the generality of Heirs whatsomever being ultimus haeres Litiscontestation IF Removings SpuilÈies and Ejections which are interdicta possessoria Litiscontestatione perpetuentur for fourty years or only three The same Question may be for Servants Fees House-Mails and such other Actions which prescribe in three years Quo casu Possessor in mala fide constituitur per Litiscontestationem quando non LItiscontestatio possessorem malae fidei constituit adeo ut ab eo Tempore ad restitutionem fructuum teneatur hoc tamen verum est in iis qui per Litiscontestationem vere in mala fide constituuntur veluti si res feudalis Emphyteutica petatur aut vindicetur ob feloniam commissam aut quia tempus locationis transactum est veraque sit causa vindicationis quam etiam possessor nec minus obstinate contendit Secus est si ego rem emo ab eo cujus esse putabam tu vero dicis eam ad te pertinere nihil adducis praeter petitionem nunciationem tunc quia bonam fidem habeo Litiscontestatio me non vera sed ficta efficit malae fidei possessorem a fructibus merito excusor donec sententia feratur Thes Besold in litera K. 48. verb. Kriegsbevvestigung Sect. pen. p. 478. Locus Poenitentiae AFter Articles of agreement are subscribed of which one is that they shall be extended in a Contract Quaeritur If there be Locus poenitentiae Ratio Dubitandi Because antequam totum negotium in mundum sit redactum licet poenitere L. 17. Cod. de fide Instrumentorum An agreement being to be perfected in Writ whereby one of the Parties was to be obliged to pay a Sum of Money there was a Letter Written thereafter by that person desireing that the Write may be drawn and bearing that he should perform conform to the said agreement Quaeritur If he be bound by the said Letter so that there is no Locus poenitentiae Answer It is thought that the bargain being to be perfected in Writ and until then there being locus poenitentiae The Letter promising performance doth imply a condition Viz. If the Write be perfected and subscribed seing upon the drawing of Writes there may arise Questions which may hinder the perfecting of the same multa cadunt inrer calicem c. M. Mare MAre dicitur esse de districtu illius Civitatis seu loci qui confinit cum Mari habentes Jurisdictonem in territorio cohaerenti Mari dicuntur habere Jurisdictionem in Mari intra centum milliaria Jus Fluviat p. 152. 496. n. 23. Marriage IF the Superior Infeft the Appearand Heir being unmarried doth he pass from the Marriage If Marriage be due if the Appearand Heir be either senex or valetudinary And either unfit or unwilling to Marry It seemeth Celibate is not Delictum so that the Casuality thereby should arise to the Superior but only the Marrying without the Superiors consent inferreth contempt and consequently Delictum poenam If the Appearand Heir be Married in his Fathers time and have Children and thereafter Marry after his Fathers decease will a Marriage fall to the Superior If the Marriage of the Appearand Heir of ward-Ward-Lands should be modified with respect to the value of the Ward Lands without consideration of his Debts It appears that the Superior should not be in worse case by the Deed of his Vassal and yet he may be in better for if the Heir have beside a personal or other Estate the Marriage will be modified to be such as the Tocher to a Person of that Estate may be thought in probability to amount to If a Person holding of the King and other Superiors Respective of the King blensh but of them Ward may resign in the Kings hands to be holden Ward in aemulationem and of purpose to prejudge the other Superiors Saltcoats If Parties be Married publickly Quaeritur If it be not our that they are impotent as if it may be proven that before the Marriage the Man was Castratus is it competent to the Heir or any other person concerned in the point of Interest but the party
of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
non procuret eorum grana in mola sua bannaria contundi intra spatium viginti quatuor horarum Idem quaest 11. 139. alii ibi ab eo laudati An Extrui possit Molendinum quod noceat vicino SUperioris Molendini Dominus prohibere non potest ne in inferiori loco alius Molendinum exstruat tametsi ex eo futurum sit ut superioris reditus diminuatur quia ex eo quod quis suo Jure facit teneri non potest licet alteri per consequentiam noceatur distinguendum est qua ratione superiori vicino noceatur nam si ob id solum quod minus frequens sit Superioris Molendini commercium prohibendus non est cum suam posset quisque conditionem Meliorem facere etiam cum alterius detrimento dummodo citra injuriam Si vero ob id quod cursus aquae impediatur ex restagnatione fiat ut superius Molendinum perinde exerceri nequeat prohiberi potest nam sic debet quis rem suam meliorem facere ne vicini Deteriorem reddat Heringius de Molendinis q. 14. n. 30. An Molendinum possit Extrui sine licentia Principis IN flumine publico navigabili aut tale faciente non nisi ex principis licentia sed in alio non navigabili attamen publico sola Gentium authoritate Molendinum extrui potest Idem quaest 15. n. 39. Restagnatio Molendini SI duo in eodem flumine Molendina possederint quoad Restagnationem pacta consuetudo primum servantur his deficientibus qui prior aedificavit primas habet partes Idem quaest 20. n. 10. Vsus Molendinorum Juri Civili ignotus QUae de Molendinis nunc obtinent in usu sunt Juri civili ignota sunt maxima ex parte nam post Imperii translationem ex Oriente in Occidentem tempore Caroli Magni etiam Juris mutatio successit usus Molendinorum alio loco esse coepit quam apud Romanos adeo ut Molendina exstruendi facultas hodie non amplius sit communis sed privata ut plurimum siquidem Principibus Comitibus Baronibus ab Imperatore a Principibus rursus viris nobilibus aliis cum Territorio feudis Jure Clientelae tribuitur ita ut jus Molendinorum pro beneficio Regali aut principali aestimetur Heringius de Molendinis Quaest 7. n. 4. sequent p. 124. Vbi convenit ut pro Familia molatur quid Juris si aucta sit SI in concessione feudi aut Emphyteuseos aut simplicis Conductionis pactum adjiciatur quod debeat accipiens molere frumentum pro tradente ipsiusque tota Familia eaque si aucta fuerit pro omnibus molere debet gratis aut eodem quod convenerat pretio potest enim evenire ut Familia minuatur sic molitor est in lucro Cum igitur penes eum eo casu foret Lucrum debet damnum sentire Idem obtinet in Furno concessione Lignorum pro familia Hering de molen quaest 20. n. 15. sequen If a Mother and her Friends may succeed IF in no case Cognati on the Mothers side can succeed Answer It is thought that they ought to succeed seing the Son succeedeth to his Mother and her Friends and Jus successionis should be reciprocal being founded upon Proximity of Blood which is the same to the Mother and to the Son But in this our Custome is lame and opus est vel constitutione vel Decisione Mutuum MVtuum Commodatum and such other Contracts which are said Recontrahi and not nudo consensu Quaeritur If they may not be said to be Contracted when a Write is Subscribed thereupon obligeing persons to lend Money or Commodare Answer Such Contracts cannot be said to be Mutuum or Commodatum nisi res intervenerit And yet datur ex iis actio praescriptis verbis or in factum N. Non-entry IF the Superior of Lands holden feu will have during Non-entry both the Feu-duty as his own and the Non-entry Duty as Casuality and Fruit of his Superiority The Superior being in Non-entry Quaeritur Though the Non-entry were declared whether the Liferent Escheat of the Subvassal would belong to the immediate Superior Ratio Dubitandi It is not a feudale Delictum and commissum but ex lege which is in favours of the immediate Superior If the Superior suffer the Appearand Heir to be in Non-entry and to possess without a Process for Nonentry If he may have a real Action of poinding the Ground against a singular successor If the full Duties will be due to the Superior upon account of Non-entry following the Ward albeit the Superior was not in possession during the Ward Quaeritur When Lands are Disponed by a Baron to be holden of himself If before Declarator of Non-entry the full Duties be due when the Lands are Disponed without any mention of Retour or Extent Answer If the Lands be Disponed to be holden from the Disponer of the King a proportion only of the Retour Duty is due Because the King and the Disponer having condescended that the old Barony should be extended That part which is Disponed to be holden of the King censetur eodem Jure with the rest of the Barony But when the Baron Dispones a part to be holden of himself without any mention of Extent the full Duties may be claimed at least the proportion of the valued Duty Novo-damus THE King having granted a Charter with a Novo-damus Quaeritur If he should have succeeded to a person having a better Right either upon Forefaulture or Recognition or as next Heir will the Novo-damus barr him Or if the Novo-damus should be understood to be restricted to any Right or pretence or claim the King may have to the Lands by the Right of the Resignant as falling in his hands by Forefaulture of him or his Authors or otherwayes from their Right and the committing of the same either for ever or for a time Quid Juris as to other Superiors having succeeded to persons having a better Right Quid Juris If other Superiors have received any Vassal upon Resignation or otherwayes if they may question their Vassals Right upon another unquestionably better falling to them as succeeding to any other person Lands having fallen to the King by Forefaulture the person Forefaulted having but a Right of Superiority the Property belonging to Vassals Quaeritur If upon Resignation of the Subvassal in the Kings hands as immediate Superior by the Forefaulture a Charter with a Novo-damus will put him in that Condition as if he had from the beginning holden of the King so that the King cannot interpose another Superior by Disponing the Superiority that did belong to the Traitor Ratio Dubitandi That the Novo-damus is equivalent to an Original Grant And yet is thought That the Novo-damus is only an accessory Right and in effect Clausula executiva whereby the King gives the Property that belonged to the Resigner with
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
such Movables as are within his oun Territory Or to all the Rebel his Movables even such as are within the Regalities of others If a Right of Regality may be granted not only for Lands holden of the King but for such as hold of other Superiors Ratio Dubitandi That the King being the Fountain of all Jurisdiction in whatsomever Lands or Bounds whether they hold immediatly of himself or not may delegate and give thar Jurisdiction to whom he pleases whether the Lands hold of himself or not And on the other part the said Jurisdiction being annexed to the Lands and given intuitu of the same it is hard that a Vassal should be above his Superior and his Superior being it may be Baron a Right of a Barony-Jurisdiction cannot be given in eadem Baronia and farr less of a higher Jurisdiction And no Right can be given to a Vassal in relation to his Lands but such as would pertain to his Superior if the the Lands come in his hands by Non-entry or otherwise And the Right of Regality which did never pertain to the Superior himself cannot come in his hands by Non-entry or otherwise Writs registrate that cannot be found in the Register IF it be Evident that a Writ was put in the Register and yet cannot be found neither Principal nor Booked What Remedy Registratio APud nos Instrumenta aut Literae Registrari dicuntur cum referuntur in Regestum sive Librum publicorum vel actorum vel monumentorum Registratio autem celebratur duobus modis ad diversos fines effectus Ubi enim Instrumentum sive simples 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 obligatio scilicet aut Chirographum aut Dispositio aut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 contractus scilicet inter duos aut plures in librum actorum refertur plaerumque fit ut vim instar sententiae obtineat executionem paratam virtute claulae Executivae Registrationis ut vocant in omnibus fere instrumentis solennibus istis aut similibus verbis viz. Et pro majori securitate nos ii scilicet qui obligantur volumus consentimus ut praesens Instrumentum inseratur Registretur in Libris Supremae aut inferioris Curiae competentis ut ita nanciscatur vim sententiae Dictorum Judicum ut Literae Denunciationis Cornuationis ut practici loquuntur continentes spatium sex dierum alia necessaria ut par est pro ea exsequenda Dirigantur constituimus _____ aut eorum quemlibet Procuratores nostros ad effectum praedictum Sic sine lite processu ad ultimam processus metam exitum devenitur sententiam scilicet Executionem omnimodam fictione enim brevis manus omnia ad processum sententiam requisita quodammodo insunt vice enim Citationis quae supervacua est ubi partes praesto sunt consentiunt procurator etiam Rei intervenit dicis causa consentit Judex etiam secundum Instrumenta exhibita per procuratorem eoque postulante ut juxta Clausulam praedictam ad effectum praedictum in Regestum referantur decernit actuarius etiam Clericus Curiae decretum seu Extractum expedit Illud autem tribus partibus constat 1mo Enim praemittitur decretum eâque sequitur formâ Edinburgi _____ die Mensis _____ 16 _____ Coram Dominis Concilii Sessionis comparuit T. W. Advocatus procurator pro D. P. W. Obligato in Chirographo infra scripto exhibuit dictum Chirographum petiitque illud inseri Registrari in Libris Concilii Sessionis ut vim sententiae dictorum Dominorum obtineret ei interponendam qua literae Cornuationis aliae necessariae desuper dirigantur modo inibi specificato quam postulationem dicti Domini Rationi consonam Judicarunt ideoque ordinavere ordinant Dictum Chirographum inseri Registrari in libris dictae curiae decrevere illud obtinere vim sententiae ipsorum Literas Cornuationis alias necessarias inde dirigi modo infra-scripto 2do Subjungitur Tenor ipsius Chirographi 3tio Sequitur Clausula ista viz. Extractum de libro actorum per me viz. Vel Dominum Rotulorum Clericum Registri vel ejus Deputatum Clericum qui subscribit nomen suum Instrumento autem Registrato autographum seu originale a Clerico retinetur in publica custodia Exemplari ut superius diximus Extracto Creditori dato ex quo executio sequitur tam realis quam in personam nec absimile est illud Extractum Instrumento Guarentigiato cujus saepe mentio habetur tam apud Jurisconsultos quam Practicos ex eo enim non minus quam ex sententia solenni Executio parata est Caeterum omnis definitio in Jure periculosa est Juris remedia etiam optima interdum remedio indigere videntur nec Registrationis saluberrimo instituto suum deesse videtur incommodum Instrumenta enim cum in publica custodia sint Incuria Clericorum aut servorum fraude facile intercidunt aut subtrahuntur ea autem perdita esse subodorati debitores aut eorum haeredes actione Falsi eam Improbationem dicimus intentata saepe liberantur nulla Judicis sed summa actoris reapse injustitia In causa enim Falsi agitur ut exhibeatur Instrumentum de quo quaestio est ea in libello comminatione seu ut practici loquuntur Certificatione nisi exhibeatur irritum fore nec ullam ejus Rationem aut fidem habendam esse in Judicio vel extra Judicium In ista autem causa Falsi haud satisfacit Exhibitio exemplaris rite Extracti nec immerito sine ratione Instrumentum enim ipsum multa fortasse sufficeret argumenta tam ad veritatem astruendam quam ad falsitatem arguendam ex comparatione Literarum Subscriptionibus Testium Partium alia plurima quae Extracto tantum exhibito desiderantur Hac Ratione impulsi nec provisis incommodis pluribus gravioribus ut omnis mutatio etiam in melius est periculosa Angli Judices tempore nuperae Usurpationis si fas est praedones perduelles Judices vocare in res novas semper prurientes annitentibus maxime Scotis qui eis assidere ut Collegae haud erubuerunt statuto sancierunt Instrumentum ipsum exhibendum quidem ut in acta referatur Creditori reddendum ut penes eum remaneret Registratio enim cum sit actus voluntariae Jurisdictionis quolibet tempore etiam feriarum explicatur non tantum extra Judicium sed nec ullo alio fundamento nititur nisi consensu partium clausula Registrationis in Instrumento ipso inserta Instrumento autem penes Creditorem remanente nec in custodia publica asservato sententia esset inanis sine ullo probationis adminiculo quod in actis sit Adhaec eadem majora sequerentur incommoda saepe enim non tantum ejus penes quem Instrumentum est sed aliorum interest ut servetur praediis forte haeredibus Taliae
haud obtruditur ante Resignationem cum Domino transigitur de Laudimiis si quae alia ab Emptore praestanda sunt Domino ut ab omni periculo incommodo securus sit Non diffiteor longe aliam rationem esse Domini Regis Cum enim Pater Patriae sit nec sit e dignitate sua causari aliquem e subditis sibi iniquum aut infensum nullo delectu aut discrimine Resignationes recipit per eos quibus eam Provinciam demandavit Adhaec Principes de rebus publicis solliciti privatis superesse nequeunt viris clarissimis qui a Rationibus sunt utcunque impigris sedulis haud mirum est si aliquando imponatur sed fraus deprehensa punitur lege consultissima statutum Regis Ministrorum Incuriam Negligentiam Regi haud officere nec difficile adhibere remedia quibus fraudibus incommodis obviam eatur inter alia illud esset haud spernendum si Resignatione facta Instrumentum Resignationis statim conficeretur subscribentibus etiam tam Resignante quam Resignatario apud Cameram Rationum deponatur alioqui Resignatio habeatur pro infecta sic enim constabit Resignationem celebratam incommoda supradicta cessabunt Interea quae pro Negativa disseruimus intelligi velim si compertum sit Resignationem factam nec fraudem subesse eo casu quia omne Jus a Rege ut Juris fonte profluit si scriptum sit sanxit si moribus introductum permisit quasi tacito consensu firmavit quod in alios statuerit Jure uti debet Cum Deus nobis haec otia fecerit aut fieri permiserit statueram ea utcunque oblectare id genus exercitationibus comperto quaestionem in foro ventilari videbar mihi operae pretium facturus si in casu arduo exitus dubii ancipitis quicunque demum futurus sit magni momenti quid Juris sit dispicerem quid meae esset opinionis dicerem id feci eo animi candore ut nec in Regem studio quod mihi semper maximum fuerat nec alio affectu transversum rapi mihi permiserim licet in causa simili etiam res mea ageretur nec socero nec vitrico nec aliis ultimus haeres fui nec assentatione aut aliis artibus ab aliquo opes eblanditus aut adeptus sum nec munus antequam enim ad munera eodem quo nunc mihi ereptum est impetu ab iisdem raptus sum tantum non invitus eorum quae mihi acciderunt praesagus Deo largiente industriae Laboriosae innoxiae alienis haud inhianti favente fui adhuc sum Superior Dominus directus haud unius Vasalli sed cum ista animo agitarem immo persoripsissem haud animo praejudicandi nedum sugillandi amplissimi Senatus sententiam incertus quaenam futura esset sed ne animus negotiis assuetus immo ab ineunte aetate innutritus nunc ignobili otio desidia torpesceret tandem mihi nunciatum est Senatum pro Affirmativa judicasse secundum actorem Regis Donatarium Retention QVaeritur In the Cases of Compensation mentioned in the Questions second and third anent Compensation in the Letter C. If at least the Defender may pretend that he should not be in worse case than if the Assignation were not made and therefore ought to have Retention until his Debt be liquidate It is Answered That there is no ground for Retention but the Defender ought to have done Diligence to affect the Debt due to him which he might have done by Inhibition upon the Dependence or by assigning his Action to the effect Arrestment might have been made in his hands of the Debt due by him Cum refundere oportet Ãmpensas meliorationes Jus Retentionis competit quia interest magis per Exceptionem retinere quam per actionem repetere Jus Fluviat p. 779. n. 78. Retours IF the Sheriff-Clerk and Sheriff of the Shire to which the Lands are unite may not give Seasin and will be lyable to answer in capiendo Securitatem for what is contained in the Retour as to both Lands Retoured Duty AN Annualrent of One Hundred Pound Sterling being given out of a Barony for a Sum of Money lent to the Baron upon that Surety to be holden of the Superior Quaeritur If the Barony being of a considerable Rent suppose Nine Thousand Merks per annum and the new extent of the haill Barony being but Twenty Pounds if the Annualrent should be in Non-entry whether the Non-entry should be the full Annualrent upon that pretence that valet seipsum Or if it should be only a proportion of the retoured Duty viz. The fifth part Answer It is thought that it should be only a proportion of the retoured Duty And valet seipsum is only understood when there is no other retoured Duty And in this case it appears there is no other retoured Duty In so far as the whole Barony and Rent being retoured the Annualrent being the fifth part is consequently retoured And it were absurd that for the Non-entry of an Annualrent there should be more due than for the whole Barony Specially seing the Superior wants not a Vassal of the Barony to serve him for the whole Barony and the Annualrenter is not properly a Vassal obliged to serve being infeft only for surety of his Money Return of Lands to the Superior upon a Provision IF there should be any Difference betwixt Vltimus Haeres and the King succeeding upon a Provision of Return FailÈieing Heirs male Ratio Dubitandi An ultimus Haeres and the Donatar is lyable to Debts but in the other Case it is doubtful Because it is a Maxim that when ever Lands are returned to the Superior either ad Remanentiam or ad Tempus as in the Case of Forefaulture or Recognition or Ward or Non-entry they return pura ut profecta sunt and specially in Ward-lands and where it appears that the Superior elegit familiam and has given Lands with an express Provision of Return it may seem reasonable that seing he has none to serve him in the Family he may have the Lands back in the same condition he did give them Return of Lands to the King failÈiening of Heirs Male THE King having disponed Lands without an Onerous Cause to a Relation or Servant and his Heirs male which FailÈieing to return if the Masculine Line fail Quaeritur Will the King have Right without the Burden of Debts 2do If the Lands be comprised although the King should be free of Personal Debts Will the Compriseing though expired be void Quia resoluto Jure dantis resolvitur Jus accipientis Reversion A Reversion being granted failÈiening Heirs of the Granters Body may the Granter dispone as absolute Fiar Will his Wife have a Liferent by the Contract of Marriage Will she have a Terce So that the Effect of Reversion will be only
Seing the Husband was not in the Fee the time of the Forefaulture the same being taken away by a Reduction If the Woman should thereafter Marry and have Children the time of her decease but disabled Quaeritur If the Children of the Husband who would otherways succeed if the Father were not Forefaulted will Forefault the Right of the said Estate to the King and will be in the case of a person that is Forefaulted and has Right of Succession to the Estate as Appearand Heir Cogitandum Seing there may be Quaestion Quaeritur what course shall be taken to prevent it Answer It is thought that a Gift may be procured from the King making mention of the Forefaulture and Dishabilitation and notwithstanding that His Majesty is not willing that the persons who are to succeed FailÈieing the Wife of the Forefaulted person and the Heirs of her Body should be prejudged having been Faithful and Active in opposing the late Rebellion Therefore He doth ratify the said TailÈie in so far as concerns them and the Right of Succession Declaring that it shall not be prejudged by the Forefaulture and Inability And for their farther security in case after the Decease of the Wife the Children of the Forefaulted Person be surviving and that any Right to the said Estate shall belong and accrue to His Majesty by their Inability then and in that case now as then and then as now he is to dipone to the Heirs of TailÈie succeeding after the Wife and her Children the said Estate and any Right belonging to His Majesty as being or which shall then be in his hands by the Forefaulture and Inabilty foresaid Quaeritur If a Bond granted to a Man and his Wife and longest liver of them two in Conjunct-Fee and to one of their Sons expresly named and the Heirs of his Body which FailÈieing to the Heirs to be procreat betwixt the Husband and his Wife which FailÈieing to the Wife her Heirs and Assigneys be Heretable or Moveable Seing there is neither Infeftment thereupon nor obligement to Infeft Answer It is Heretable in respect of the TailÈie foresaid there being no TailÈie of Moveables or Moveable Sums And the provision in favours of Heirs Male with the Substitution foresaid is equivalent as if Executors were expresly excluded When a Person has settled his Estate upon a Friend by a Disposition to him and certain Heirs of TailÈie therein mentioned and thereafter for security of the TailÈie has taken a Bond from the person in whose favours the TailÈie was made that he should do no deed to disinherit the other Heirs of TailÈie and to keep the TailÈie inviolable Quaeritur If the said person shall without any Onerous Cause Dispone the Lands or grant Bonds for great Sums equivalent to the value of the Estate if the said Deeds may be questioned by the next Heir of TailÈie Ratio Dubitandi The doer of the said Deeds was Fiar and the Heir of TailÈie cannot come to the Estate but as Heir to him and is lyable to his Deeds Answer It is thought in the said case there is a Fideicommissum in favours of the Heirs of TailÈie and though the Estate might be Disponed for Onerous Causes the Disponer being Fiar yet he ought not to have violate the said Fideicommissum by fraudulent and gratuitous Deeds 2do Besides the said Fideicommissum there is a supervenient obligement whereby the Heir of TailÈie is Creditor and therefore may question any deed without an Onerous Cause in defraud of the said obligement and an Heir in whose favours there is obligements qua Heirs may Question any Deeds done by the person whom he represents contrare to the said obligement As V. G. when Deeds are done on Death-bed or contrare to a TailÈie bearing Resolutive clauses though for Onerous Causes and much more in such a case where a Bond is granted to the End foresaid which ought to be effectual and could operate nothing if the Heir could not question the same Earl of Calendar A Person having provided his Estate failÈiening Heirs of his own Body in favours of a Relation and the Heirs of his Body c. and having by the Write bearing the said TailÈie and a Procuratory of Resignation provided that he should be Lyable to satisfy all Bonds Obligements and Deeds done or to be done by him at any time during Life Quaeritur If these should be understood civiliter dureing his Liege poustie or of his natural Life Answer That it is thought that it should be understood during his natural life Seing the Entail being a free gift any provisiones thereincontained in favours of the granter ought to be construed favourably and the word Lifetime is properly to be understood of natural life If it be provided that the said person should marry a Gentlewoman named in the Writ Quaeritur if such a provision be lawful Seing it appears to be contrary to the Liberty that ought to be in Marriage Answer The Right being sub modo he ought to fulfil the same and there is no restraint as to his Liberty Seing if he think fitt he may choose to accept the Right with that quality or not If the said Entail being made in Leige poustie and resignation thereupon the Granter may thereafter upon Death-bed by a paper apart oblige his said Heir of TailÈie to marry as said is or to fulfil any other provision Answer It is thought that seing he is not so stated in the Right of Succession that the Granter cannot prejudge him who has still voluntas ambulatoria and may evacuat the said Right being Master of it and having it in his own hands and power as he may cancel it so he may qualify it as he thinks fit qui potest plus potest minus A person having by an Infeftment holden of the King under the Great Seal taken the Right of his Lands to himself which failÈiening to such a person as he should name by Writ and his Heirs which failÈiening to certain other Heirs did thereafter Dispone his Estate failÈiening Heirs of his own Body to the person thereinmentioned and the Heirs Male of his Body which failÈiening to certain other Heirs of TailÈie bearing a Procuratory of Resignation and reserving the Resigners Liferent whereupon Infeftment followed Quaeritur If thereafter the Disponer should have Children of his own Body what way should they be Infeft Cogitandum If it should be thought that the first Infeftment should stand in favours of the Disponers Heirs the said last Disposition with what has followed thereupon being conditional and the condition not having existed Quaeritur If the Heir of the Disponers Body should thereafter decease whether the said Right by Disposition shall revive at least that the person foresaid in whose favours the Disposition is made may be served Heir to the Disponers Heir of his Body by vertue of the said first Infeftment and the said Nomination and Disposition Sir Robert Hepburn If the King grant a Charter with the
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
Disposition upon the Certification seing the Write was produced and not suspected nor questioned to be false and the Defender did excuse and purge her negligence as said is and the Disposition being in her favours who was sub potestate Mariti and should be defended by him having her self in Law neither velle nor nolle his negligence should not undo her And therefore the Lords having considered also the Difficulties in the Debate upon the Reason they reduced the Disposition in manner aftermentioned by reserving to the Defender to pursue for the said pretended Debts and declared that if she recovered Decreet the Pursuer always being called that there be no collusion the Defender shall come in pari passu with the Pursuer and that the Disposition shall stand to that effect only Both the Parties acquiesced to the Decision D. 81. Cheap contra Philp. eod die MR. Cheap pursued a Reduction of a Disposition made by _____ Philp in favours of Mr. John Philp upon these Reasons That it was subscribed by two Notars and their Subscriptions did not bear de Mandato and because one of the Notars was known to be of so great Age that he had not been for a long time employed as a Notar and that he had only subscribed his Name The rest of the Solemn Words used by Notars when they subscribe in subsidium being writen by the other Notar Therefore another Notar had been also used besides the two Notars And that no respect ought to be given to his Subscription by reason it was ex Intervallo and not uno contextu 2. That the Disposition was in lecto The Lords When the case was reported debated upon the first Reason and in special upon these Points 1. Whether in Subscriptions in subsidium by Notars it be essential it should be exprest That they subscribed ex mandato and if that solemnity may be supplied by offering to prove that the Notars were Rogati It was urged that Minuts and Abbreviations of Seasins might be extended and transumed though none of the ordinary Solemnities be exprest and therefore such Defects and Omissions may be supplyed It was Answered That in Abbreviations Omnia praesumuntur solenniter acta But when an Instrument is compleat or any other Write if it want the Ordinary Solemnities they cannot be supplyed solennitas non praesumitur And being only probable by the Write it self it cannot be made up by Witnesses 2. It was debated Whether a Father or Grand-father could be Notar in a Write or Right in favors of the Son or Grand-child The Lords did demurr upon these Points and thought fit that before Answer as to these the Reason founded on Lecto should be discussed D. 82. Watt contra Halyburton eod die JAmes Halyburton being infeft upon a Comprysing in some Acres in Dirleton did grant a Disposition of the same to Adam Watt whereby he was obliged to infeft him by two Infeftments whereupon the said Adam Watt his Son having Right by Assignation from his Father pursued William Halyburton as Heir to the Disponer for implement and obtaining himself infeft and thereafter to infeft the Pursuer It was Answered That the Disposition was in the hands of Adam Watt by the space of twenty years and that he had made no use thereof and that the Defenders Father had done all that he could for denuding himself of the said Right the said Disposition bearing a procuratory of Resignation and that the Lands holding Ward if the Defender should enter his Ward and Marriage would fall so that unless the Pursuer would warrand him as to that hazard he cannot be obliged to infeft himself The Lords decerned reserving Action to the Defender for Damnage and Interest as accords D. 83. Key contra Fleming 15. June 1667. GEorge Fleming having an Infeftment of Annualrent out of the Lands of Cambo and thereafter having comprysed for his Principal Sum It was Found in a double Poinding and Competition betwixt the said George and Gilbert Key another Creditor of Cambo that the said Gilbert should be preferred in respect of the said Gilbert his Infeftment in an Annualrent That Decreet being suspended Fleming craved to be preferred in respect his Right of Annualrent was before Key 's Right It was Answered That this Infeftment was extinct and taken away by the Comprysing and that he could not now have recourse to it after a Decreet of Preference in foro contradictorio It was Replyed That Decreets of double poinding preclude as to bygones but as to the future all are qualified for any thing that was then seen The Lords were clear that notwithstanding of the Comprysing he might have recourse to his former Right But the great Question was Whether Decreets of Poinding the Ground against a Party compearing did include him so that he could not be heard against Competent and Omitted which the Lords did not decide but recommended to the Reporter to settle the Parties Gibson Clerk D. 84. Home contra the Countess of Murray 18. June 1667. JAmes Home of Beaprie having Assigned to the Countess of Murray the Gift of Escheat of Sir John Kininmouth and certain Debts due by the said Sir John The Lady by her Bond granted that she had got the said Right and obliged her self either to make payment to the said James of the foresaid Sums or to Repone him to his own place The Lady being pursued upon the said Bond alledged that it was null being granted by her during her Marriage without her Husbands consent It was Answered that the desire of the Summonds was alternative either to pay or Repone the Pursuer Et deceptis non decipientibus succuritur The Lords having debated amongst themselves upon the reason of the Law annulling Deeds stante Matrimonio done by Wives and some argued that Women Married are not in the condition of Pupils who have not judicium nor Minors who have not Judicium firmum and that they are Lyable Ex delicto vel quasi and ex dolo The Lords before Answer to the Debate whether her Assertion in the Bond viz. That she had received the Writs mentioned in the same should be Obligatory at least so far as to Repone the Pursuer They Ordained her to be Examined anent the cause of granting the Bond. Gibson Clerk D. 85. Johnstoun contra Cuninghame 19. June 1667. A Bond being granted to a Husband and his Wife and the Heirs of the Marriage which failÈiening their Heirs was Found to pertain to the Husband after the Death of the Wife in solidum And that these words their Heirs ought to be understood Civiliter of the Heirs of the Husband as being persona dignior D. 86. Watson of Dunnykier contra his Vassals 21. June 1667 THE said Watson having Feued certain Crofts with a servitude in his Muir of Path-head to Winn Divots and Clay for Building and Repairing the Houses Built and to be Built by the Vassals pursued Declarator that it should be lawful to him to improve the Muir
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
both upon the said Charter of the Miln and the said Decreet It was Alledged That the Defenders Right bears no Astriction And as to the said Charter it must be understood of the Multures belonging to the Abbot and of the Lands pertaining to or holden of him and that the Lands of Redmyre do not hold of the Abbot but of the Laird of Drum who holds the same of the King and that the Abbot could not astrict any Land but his own and as to the said Decreet that it was a latent Decreet in absence against the Defenders Author and that notwithstanding thereof the defender and his Authors had been in Possession of Liberty in swa far as tho they came sometimes to the Pursuers Miln being nearest and most convenient and the Multure being alse easie as at any other Miln yet the going to a Miln being facultatis wherein Astriction cannot be shown they had used and were in Possession of the said Liberty to go to other Milns It appeared that the same Defence being proponed in the foresaid Decreet 1597. for these who were compearing was Repelled In respect the said Charter was so Ancient and was so expresly of the Multures of the hail Parish And after so long a time it was not necessar to debate the Abbots Power to astrict the said whole Parish And the foresaid Charter does bear that the Abbot did give to the Feuer the said Miln in the same manner and alse freely as one Vmfridus had the said Miln and Multures by a Grant and Right from K. William And it was presumable that the said King who might have thirled the said Lands holden of himself did give the Miln and Multures The said Decreet likewayes 1597. did mention the Production of a Retour before the Sheriff and the verdict of an Inquest concerning the said Multures The Lords having among themselves debated and considered that the said Decreet 1597 tho in absence was a valide Decreet whereby the Defenders Author is decerned in all time coming his Tennents Cottars and Successors to pay the Multure thereinmentioned And that the said Decreet was a standing Decreet by the space of 40 years and never questioned there was no necessity to debate upon any other Grounds than that the Pursuer had thereby a Right to the said Multures Seing the Defenders did not deny that they were in use to come to the Miln but pretend a Liberty and use to go likeways to other Milns And it cannot be said that he had the said Liberty the contrare appearing by the said Decreet which never was questioned and now cannot be questioned being prescrived and yet the Lords AssoilÈied fra Bygones and Services not contained in the said Decreet It being Alledged that the Farm should not be thirled The Lords Found That the growing Corns being Astricted by the said Decreet there ought to be an exception but of Teind and Seed And that the Tennents were Lyable for such Corns as belonged to themselves and the Master for his Farm Actores Sinclair and Lermonth c. for Pittarro alteri for the Defender Lockheart and Falconer Monro Clerk In praesentia D. 352. Stenhouse contra The Heretors of Tweedmoor eod die THE Laird of Stenhouse his Lands being designed for a Gleb pursued some of the Heretors within the Parish for his relief conform to the Act of Parliament In which case in respect the pursute was by the space of 8. or 9. years after the Designation And the Heretors were in bona fide and did possess their own Lands and had made fructus suos The Lords Found That the Defenders were not Lyable to pay the Annualrent for the Sum decerned from the time of the Designation Seing usurae debentur only ex pacto vel mora Albeit it may appear That that Relief that is due ex lege is at least alse effectual as if it were ex pacto And the very Notion of Relief imports that the Party should be relieved of all Damnage sustained by him And the Pursuer was prejudged not only by the want of the value of what he was to be Relieved of but of the Interest of it Gibson Clerk D. 353. Ramsay contra Zeaman 7. June 1676. DOctor Zeaman By Contract of Marriage betwixt him and Margaret Ramsay was obliged to employ 10000 lib. to himself and her in Liferent and the Heirs of the Marriage And was also obliged to employ other 20000 lib. to himself and to the Heirs of the Marriage with a Provision that he should have power to burden the said Heirs of the Marriage with an Additional Joynture to his Wife and the provisions of his other Children at any time etiam in articulo mortis Which Joynture and Provision is accepted by the said Margaret in satisfaction of what else she could claim of Terce or Moveables And thereafter the Doctor in his Testament having named his Son and appearand Heir to be his Executor and universal Legator and having left in Legacy to his Wife the Annualrent of 3000 Merks by and attour her Joynture and diverse Provisions to his other Children and Legacies to other persons His Relict and her present Husband pursued her own Son as Executor to his Father for payment of the said Legacy left to her And it being Alledged That the Inventar of the Testament would not extend to satisfy all the Legacies and that there ought to be a Defalcation proportionably It was Answered That she was not to be considered as an ordinar Legator but in effect was a Creditor In respect of the said Provision and Power reserved to the Doctor as said is And that he had used the said power and faculty The Lords Found That the said Addition being left to her in Legacy she was in no better case than the other Legators and had no preference before them out of the Executry Yet it is thought That if there be not so much of the Executry as to satisfy the Relict her Legacy the Heir will be lyable for what she wants Seing by the said Provision the Heirs of the Marriage are burdened with what he should add to her Joynture etiam in articulo mortis And albeit nemo potest facere ne leges habeant locum in suo Testamento and no person at any time can reserve a Power to burden his Heirs at such a time as in Law he is not in legitima potestate yet when any person gives any thing or makes a Provision in favours of any other person or of his Heirs of Provision he may give and qualify the same sub modo and with what burden he pleases and therefore the Defender being not only Executor but the only Heir of the Marriage will be Lyable by the said Provision to the said Addition and Provision in favours of his Wife and Children albeit left in Lecto And he cannot frustrate the same upon pretence that he will not serve himself Heir of Provision but Heir of Line seing he is the same person and
Vectigalium Ibidem CONFESSION presumptive of a person holden as confessed d. 217. CONFIDENT persons getting Dispositions from Debitors may at the Debitors desire satisfie such Creditors as they shall think fit d. 174. CONFIRMATION necessary in Scotland of goods there belonging to Strangers elsewhere d. 21. CONJUNCT probation of the value of Lands d. 431. CONQUEST see d. 9. d. 359. Conquest found probable by the Debitor and Witnesses in the Bond. d. 68. CONSIGNATION in Improbations d. 278. CONSVETVDO Loci d. 390. CONTINGENTIA Causae non debet dividi see d. 288. A CONTRACT Subsequent to a Wadset whereby the Back-tack dueties are accumulated and made a princial Sum and that there should be no Redemption till these were Satisfied not regarded in respect the said Contract was not Registrate in the Register of Reversions d. 27. Contracts of Marriage see d. 9. d. 123. d. 161. d. 169. d. 172. d. 185. d. 195. d. 364. CORREI debendi see d. 231. COUNTERBAND Goods d. 132. d. 153. CREDITORS on the account of Funerals and Druggs d. 206. When Creditors do appear in Adjudications not called they ought to be admitted with that quality that the Adjudger shall be in the same case as to any Adjudication at their Instance as if both Adjudgers were within Year and Day d. 324. CURATOR d. 363. d. 435. see d. 88. d. 316. Curator non datur personae sed rebus so that the Minors person is not in potestate d. 321. Curators Subscriveing only to Writs and not the Minors d. 216. D. DAMNAGE by Ruinous Houses sustained without necessity to say that the Defender was required to repaire his House d. 66. DATE see d. 179. DEATH-BED Vide in Lecto Litera L. DEBITOR non praesumitur donare how to be interpret d. 333. DEBITVM Fundi d. 274. d. 372. DECIMAE inclusae not Lyable to the Augmentation of Ministers Stipends d. 229. DEEDS in Lecto see in Lecto Lit. L. DECLARATOR of Redemption d. 276. A Declarator that Childrens Provisions being granted after Contracting of the Debt should be Lyable to the Creditors and their Diligence sustained without Reduction d. 344. Declarator general of Non-entry being intented the hail Duties are due d. 28. Declarator of the Nullity of a Minute d. 118. DECLINATOR of Judges d. 303. DECREET see d. 98. d. 203. A Decreet against a person holden as confest craved to be declared Null d. 232 Decreets in foro d. 361. see d. 225. d. 370. Decreets of Inferior Judges see d. 445. DEFENCE after Litiscontestation d. 246. In DELICTS by SpuilÈie and wrongous Intromission Decreets against persons are construed to be in solidum d. 247. DELIVERY of Writts d. 150. d. 272. d. 442. see d. 106. d. 129. Dementia See d. 76. DENOUNCIATION of Lands see d. 328. DEPENDENCE see d. 36. DEPOSITIONS of Witnesses in one Process craved to be repeated in another d. 219. Depositions of Witnesses to ly in Retentis d. 236. DESIGNATION of Lands for a Gleib and relief thereof conform to the Act of Parliament from the rest of the Heritors but Annualrent found not due from the time of the Designation d. 352. DISCHARGES granted by a Master to Tennents without Witnesses d. 189. A DISPONER may qualify his Right and in special if the person be a Pupil that such as are named in the Disposition should Administrate d. 316. A Disposition made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis d. 254. DISCUSSING of Heirs see d. 69. DONATIO inter virum Vxorem d. 204. d. 426. d. 362. DONATOR see d. 14. d. 249. d. 389. d. 411. A Donator of ultimus Haeres d. 38. The Donator a quo tempore has he Right to the full Rents d. 273. E EDICT of Executry d. 433. EJECTION sustained at the Masters instance tho the Tennent did not concurr but not quoad omnes effectus d. 19. Ejection sustained at the Wifes instance where the Husband is absent d. 105. ERROR and mistake d. 338. ESCAPE of Prisoners d. 299. d. 301. d. 306. ESCHEAT see d. 14. d. 59. d. 75. d. 162. d. 205. d. 331. d. 409. d. 411. Escheat passes cum sua causa d. 177. EXAMINATION of Witnesses in an Improbation d. 42. EXCEPTIO Falsi proponed peremptorie d. 126. Exceptions quo casu they affirm the Lybel see d. 199. d. 223. EXCHANGE see d. 231. EXECUTOR d. 62. d. 182. d. 454 d. 412. see d. 181. d. 187. d. 205. d. 224. An Executor has not an absolute property in the Goods confirmed but only qualified and for Administration d. 302. Executor Creditor see d. 389. Executor Creditor Lyable to doe Diligence d. 35. Executors giving Oath upon the Inventar d. 97. EXERCITORES navis Lyable in solidum d. 166. EXHIBITION sustained of Writts intrometted with by the Defender albeit not proven that he had them at or since the intenting of the Cause he having medled with them in the Charter-chest whereby fraud is presumed d. 114. Exhibition ad deliberandum d. 49. d. 258. EXPENCES see d. 281. d. 458. Expences of Executors upon pursueing of Processes doe affect Legators d. 181. Anent EXTRACTING of Decreets and when res est integra as to the proponing of New Defences d. 203. F. FACULTY reserved in a Disposition to burden with a Sum. d. 457. Faculty reserved out of the Right of Fee to burden the same with a Sum of Money d. 418. Causa FALSI see d. 196. d. 385. FEES of Commissioners to the Parliament d. 188. FEUARS see d. 190. FEU-DUTY see d. 92. d. 229. FIAR see d 95 d 136 d 144 d 213 d 350 d 418. FINES see d 311. FRAUDULENT Rights d. 48. d. 156. Fraudulent Rights contrare to the Act of Parliament 1621. d. 198. FUNERALS see d. 206. FORTHCOMING see d. 110. Forthcoming in effect Execution and equivalent to a poinding d. 53. G. GESTIO pro haerede d. 151. see d. 119. Gestio pro haerede by Intromission with Rents not sustained where there is a Title d. 67. Gestio pro Haerede elided by the Behavers having got a Gift of the Defuncts Escheat ante motam litem d. 331. Gestio pro Haerede inferred by the Appearand Heirs consent to expired Comprysings d. 63. GIFT of Ward in favours of the Vassal himself accresces to the Subvassal d. 392 Gifts of Escheat d 409 see d 187 d 224. d 249. Gifts of Escheat and Backbonds d 162 Gifts of Escheat when presumed simulate d 411. GLEIB see d 93. d 352. GOODS Disponed stante rebellione fall under Escheat d. 75. GOVERNOURS going Abroad with Youngmen their case as to their Intromission d. 421. GRANA crescentia see d 293. GRASS due to Ministers d 256. H. HABIT of Bankrupts d. 282. HEIR see d 69 d 85 d 169 d 172 d. 214 d 353 d 400 d 416 d 450. Heir of Line see d 107 d 295. If an Heir of Provision may be pursued where the Heir of Line has renounced but not yet discussed by Adjudication d
107. Heirs of Conquest see d 295. Heirship Movable see d 151 d 209. HERITABLE see d. 39. Heritable Bonds decided to belong not to the Heirs of Line but of Conquest d. 295. HOMOLOGATION see d. 27. HORNING d 253 d. 422. see d. 59 d 222. d. 406. HUSBAND see d 85 d 100 d 105 d 125 d 144. d. 182 d 315 d 319. d 336. Husband and Wife and how far her Oath will oblige him d. 71. A Husband conveened for his Wifes Debt d. 332. A Husband taking burden for his Wife d. 257. A Husband Lyable for the Wifes Debt in quantum lucratus But an ordinary Tocher being ad sustinenda Onera Matrimonii is not Lucrum d. 10. HYPOTHEQUE see d. 420. I IACTVS Retis see d. 220 IMPENSAE necessariae not allowed to a Compryser in a Declarator that he was satisfied by Intromission d. 133. IMPROBATION d. 168. d. 196. d. d. 230. d. 339. d. 262. d. 286. d. 385. d. 386. d. 456. see d. 42. d. 50. d. 80. d. 113. d. 145. d. 163. d. 210. d. 265 d. 278. d. 291. d. 403. In an Improbation an Extract out of the Books of an Inferior Court does not satisfie the production d. 285. Improbation of Executions before Inferior Judges d. 444. Improbation of poinding will not elide SpuilÈe being proponed at advising of the Cause d. 73. INCORPORATION see d. 152. INFEFTMENT see d. 100. d. 160. d. 399. INFEFTMENT of Annualrent see d. 83. Infeftment of Annualrent and personal action thereupon d. 407. Infeftment of Annualrent made publick by a poinding of the Ground d. 341. Infeftment of Warrandice base to be holden of the Granter preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled with possession diverse Years and the possession of the principal Lands is interpreted the possession of the Warrandice Lands d. 15. INFERIOR Judges see d. 279. d. 294. d. 406. d. 444. INHIBITION d. 213. d. 254. d. 413. Inhibition against a Wise d. 264. Inhibition at the Instance of the Heir of a Marriage d. 214. Inhibition upon a Dependence d. 36. Inhibition upon an obligement to Warrand d. 116. d. 117. Inhibitions do not affect Renounciations so that the Debitor in a Wadset may pay his Debt and take a Renounciation tho the Creditor Granter be inhibited d. 96. INNOVATION d. 240. INSTITORIA Actio see d. 319. INSTRUMENT of Requisition must be perfected and cannot be supplyed by an unsubscribed minute after the Notars decease d. 102. INSTRVMENT Bellica see d. 132. Instrumenta quae in quibusdam sapiunt naturam Testamenti in alijs naturam actus inter vivos cui Juri ascribenda sunt d. 103. Instrumentum penes debitorem repertum see d. 428 INTERDICTION d. 381. d. 382. see d. 29. d. 34. INTERRUPTION d. 216. INTROMISSION d. 221. d. 224. see d. 67. d. 133. d. 137. d. 187. d. 199. d. 223. d. 205. d. 404. INVENTAR see d. 97. IOURNEY-MENS keeping of a Box. d. 70. JUDGES see Declinator JVRAMENTVM in Litem see d. 322. d. 447. JURISDICTION see d. 279. Jurisdiction of a Bailif of Regality d. 131. JVS Mariti see d. 123. Jus praesentationis see d. 112. Jus Relictae d. 315. Jus superveniens d. 128. Jus tacitae Hypothecae how far competent to the Master of the Ground d. 329. K. KEEPING of Writs d. 451. Keeping of Writs of Lands where there is a joint interest allowed to him who offers Caution to the other portioners d. 227. KINGS Decreet arbitrall see d. 229. KIRK see d. 112. Kirk-Lands see d. 93. L. In LECTO d. 443. see d. 40. d. 157. d. 186. d. 193. d. 353. d 402. d. 449. A LEGACIE left upon condition subsists tho the Condition did not exist when there is praesumptio voluntatis Testatoris d. 18. d. 32. LEGATORS d. 378. see d. 181. d. 402. LEGATVM of a Heretable Sum. d. 197. LETTERS of Horning upon the decreets of Inferior Judges d. 406. LIFERENT see d. 9. d. 33. Liferent Escheat see d. 198. A LIFERENTER of the whole must entertain the Fiar tho only appearand Heir the time of the entertainment d. 95. LITISCONTESTATION see d. 74. d. 119. d. 246. LOCVS poenitentiae d. 192. LOOSEING of Arrestment d. 300. LORD of the Outter house adviseing probation d. 445. Lords of Session see d. 180. see Trial. Lords of Session their Letter to the King d. 218. The LYON sustained Judge Competent in an Action against a Messengers Cautioner for damnage and interest d. 30. M. MAGISTRATS of Burghs see d. 91. Magistrates of Burghs are not obliged to officiate longer than one year d. 124. Magistrats takeing Assignation to a debt for which they were lyable subsidiarie do come in place of the principal and the Cautioner is liberate d. 147. Magistrats lyable for the Negligence of their predecessors an Incorporation being persona quae non moritur d. 152. MANDATVM excedens how far Lyable d. 259. MARRIAGE d. 415. see d. 202. d. 327. MASTER of the Ground see d. 329. MENSAL Kirk see d. 325. MERCES see d. 220. MERCHANTS see d. 452. A Merchant's current accompt does not prescribe d. 318. MESSENGER see d. 235. METVS see d. 419. A MILN-DAMN cannot be drawn from one side of a Burn to another without consent of the Heritor having Lands on the other side or a Servitude d. 87. MINISTER see d. 25. d. 112. d. 229. d. 256. Ministers Stipend d. 398. MINOR see d. 61. d. 72. d. 88. d. 216. d. 321. Minor non tenetur placitare competent against Declarators of Right but not when the Minor is pursued in a Molestation where a pursuer is in possession d. 64. A Minor Cautioner for his Father in a Bond Null d. 26. d. 31. d. 55. MINORITY excluded It being offered to be proven that the Minor was then a Traffiqueing Merchant d. 360. Minority and Lesion d. 369. MODIFICATION of Expences d. 281. Clause cum MOLENDINIS Multuris see d. 1. MOLESTATION see d. 64. MOOR see d. 86. MORTIFICATION d. 379. Mortification for a Library Keeper to the Colledge of Aberdeen d. 269. d. 27. MOVEABLE Bond. d. 424. Moveable Heirship see d. 209. Moveable Sums see d. 342. Moveables Disponed to a Wife with the burden of the Debts and that they shall be affected with the same yet the Property thereof is settled in the person of the Wife d. 320. MUIR see Moor. MULTURES see d. 58. d. 293. N. NAVTAE Caupones c. If it takes place in the case of a Horse stollen out of the Park it being told the Pursuer that the Keeper would not be Answerable d. 104. NEAREST of Kin. see d. 389. NEGOTIORVM Gestor d. 357. NON Creditur Referenti nisi constet de Relato how to be understood d. 347. NON ENTRY see d. 28. d. 273. NON Memini d. 245. NOTAR see d. 102. d. 135. NOTARS Subscription in subsidium wanting the solemnity de mandato if Null d. 81. NOVATION see d. 240. O. OATH d. 453. see d.
RETENTIS see d. 74. REVERSION see d. 27. d. 276. d. 417. If Reversions limited to a time do prescrive against Wives cled with Husband d. 297. ROYAL Burghs and Burghs of Barony their Liberties d. 395. RUINOUS Houses see d. 66. S. SASINE see d. 22. d. 345. Sasine by a Husband to his Wife propriis manibus d. 125. A Sasine within Burgh not booked d. 348. SERVICE of Heirs d. 416. see d. 323. SERVITUDE see d. 87. d. 312. A Servitude of a Divot in a Moor found not to hinder an Heritor to Labour and improve the same there being so much thereof set apart as would satisfy the end of the Servitude d. 86. SESSION-Books do not prove the Age of a Party to infer Reduction ex capite Minoritatis d. 72. SINGLE avail of Marriage d. 202. SOCII see d. 8. SOLENNES Induciae see d. 167. In SOLVTVM data d. 200. A SONE subscribing as Witness to the Fathers Provision of the rest of the Children on Death-bed hinders Reduction ex capite lecti d. 40. A SPECIAL service in an Annualrent does give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow d. 323. Post SPONSALIA Banna a Woman not sui Juris and can do no deed in prejudice of her self or of her future Husband without his consent d. 13. If SPONSIONES ludicrae anent Marrying ought to be allowed d. 327. SPULZIE d. 447. d. 459. see d. 322. SpulÈie being restricted to wrongous Intromission the Defenders are not lyable in solidum but conjunctly d. 137. STENTS imposed by Burghs upon their Feuers d. 190. STIPENDS see d. 229. d. 325. d. 398. STRANGERS see d. 21. d. 239. SUBSCRIPTION in subsidium see d. 81. SUBSIDIARY Action against the user of false Writs d 460. SUBSTITUTION see d. 213. A SUBVASSAL being Infeft by a Baron cum curiâ—s Bloodwitis may hold Courts and unlaw for Blood d. 5. Subvassals being in possession ought to be called in an Improbation against the Vassal their Author d. 145. If a SUCCESSOR in a Benefice be Lyable for his Predecessors Taxation d. 115. Successor Titulo Lucrativo d. 130. d. 184 d. 377. A SUM expresly provided by a Clause in a Disposition and Infeftment to be payed by the Receiver of the Disposition otherwayes his Right to be void such a Clause found Real d. 41. Sums may be Moveable tho secured by Heretable Rights d. 342. SUPERVENIENT Title d. 389. SUSPECT Tutor see d. 90. T. TACITE Hypotheque d. 420 TACK see d. 145. Tack of Teinds d. 289. A Tack not cled with possession and conferred in tempus indebitum d. 346. A Tack razed in the date d. 179. A Tack set by a Minister for more than three years without consent of the Patron how sustained d. 25. Tacks after Redemption d 358. Tacks and in what case remittitur Merces d 220. TACKSMEN of Lands within Burgh d 429. TAILZIES d 257 d 266. TAVERNERS are presumed to Compt Weekly with their Masters d 340. TAXATION see d 115 d 241. Taxation not augmented upon the account of the Collectors Charges d 65. TEINDS d 148 d 355. see d 289 d 388. Teinds belong to the Minister Jure Repraesentationis albeit the Kirk be a Member of a Collegiate Church and the Minister not prebend d 112. TENENDAS see d 149. TENNENTS see d 189. TENOR and prouing therof see d 77 d 185 d 304. If the Tenor of Comprysings may be prouen d 24. TENTVS reputatus see d 381 d 382. TERCE d 141 d 234. TESTAMENT see d 76 d 103 d 375 d 159 d 194 d 197. Testament sufficiently executed by a Decreet tho no payment be made thereupon d 49. TESTIMONIES of Witnesses see d 361. TESTIS Domesticus d 390. In Testium conflictu major pars praevalet d 109. THIRLAGE d 312 see d 293 d 351. Thirlage constitute by reservation of Multures as to these who consent to the reservation albeit no preceeding Thirlage d 58. TRANSFERRENE d 52 d 337. Transferring in a Reduction d 7. TRIAL at the Admission of the Lords of Session d 180. TRUST see d 186 d 193. TRUSTEES see d 174. Trustees when they denude are to be relieved of all hazard upon account of the Trust d 43. TVTELAE Actio see d. 314. TUTOR and Pupil d. 242. d. 376. see d. 336. A Tutor being pursued to remove as suspect there being Debts betwixt him and the Pupil another friend appointed by the Lords to be joined to him d. 90. A Tutor craving by a Bill that he might set his Pupils Lands for lesser Duties refused d. 277. Tutors Lyable only for the time they accept and not after they knew they were named d. 233. V. VACANT Stipends d. 325. Non VALENS agere see d. 297. VASSAL see d. 145. VASTATION by War Found to give Conductores Vectigalium a proportional abatement albeit it be Conductio rei dubiae d. 108. VICCARAGE d. 388. see d. 148. VICTUAL see d. 267. VITIOUS Intromission d. 187. d. 205. d. 354. U. ULTIMUS Haeres see d. 38. UNFREEMEN see d. 79. USURARY Bond. see d. 56. W. WADSET d. 436. see d. 27. d. 96. d. 134. d. 268. d. 330. d. 439. A Wadset bearing only for security and until the Wadsetter should be satisfied by Intromission Found to be an improper Wadset tho without a Backtack d. 57 WADSETTERS must count for the excrescence of the duties d. 176. WAIRD Lands being disponed by a Father with obligement for two Infeftments The Son must compleat the said Right by Entreing and Infefting the Partie Reserving to him Action for Relief of his Ward and Marriage as accords d. 82. WARRANDICE see d 15. d. 93. WARRANDICE from Astriction d 173. The WARRANDICE of a Disposition of a Comprising found in dubio to warrand the Validity of the Compryseing and the Reality of the Debt but not to refound the pryce in case of Eviction d. 44. WARRANDICE of Lands is absolute unless expressly limited But Warrandice in Assignations of Bonds is only debitorem esse but non esse locupletem d. 248. WEARING the Habite d. 252. WIFE see d. 6. d 10. d. 71. d. 85. d. 100. d. 105. d. 125 d. 141. d. 143. d. 144. d. 182. d. 204. d. 257. d. 264. d. 297. d. 315. d. 332. d. 353. d. 371. A Wife consenting to a Disposition of Lands made by her Husband is not hindred to evict the same she acquireing thereafter a Right from another Person d. 128. A Wife haveing a peculium settled upon her exclusive of her Husbands Intrest therein found lyable for a Bond granted by her d. 164. The Wife is praeposita negotiis domesticis for Provision of the House d 310 A Wife Trafiqueing as a Merchand the Husband is lyable for Debts Contracted by her on the account of that Trafique actione Institoria d. 319. A WIFES obligement stante matrimonio d. 84. Wives and conjunct persons ought to abide by Writs Simpliciter d. 265. Wives Infeftments upon their Contracts of Marriage sustained albeit Base in respect of the Husbands possession d. 161. WITNESSES d. 441. see d. 42. d. 109. d. 219. d. 236. d. 317. d. 383. d. 419. d. 427. d. 428. d. 432. Witnesses before Answer d. 171. Witnesses depositions how received before Litiscontestation to ly in Retentis d. 74. Witnesses in a Bond not being designed It 's allowed to the person to designe them one of the Witnesses being yet on lyfe d. 12. WRITERS name may be condescended upon after the Writer and Witnesses are Dead And in what case and Terms d. 343. Writers to the Signet discharged to alter the solennes Jnduciae in Bills and Summonds except in such as are priviledged by the Law d. 167. FINIS
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
the Forefaulture and Commission and Disposition made by vertue thereof and ratifying the same and conform thereto giving and Disponing the Lands therein-contained Ripae Ripatica USus Riparum est publicus cuilibet licet naves ad eas appellere Ripae enim hanc servitutem debent flumini cujus usus sine usu riparum nullus est servitus ista a natura imposita videtur ut usu fluminis concesso ea concessa intelligantur sine quibus eo uti non possumus Jus Fluviaticum p. 28. n. 362. Ripatica penduntur pro trajectione quae navi fit ab una Ripa in aliam sunt omnia Emolumenta reditus quae Princeps capit in Ripis fluminum vectigalia scilicet potestas cogendi ad muniendas Ripas Idem p. 30. n. 375. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters IT being the Custom of the Country in some places That Lands consisting of Grass-Roums are Yearly set from Whitesunday to Whitesunday thereafter for payment of a Silver Duty at Martinmass after they are set Quaeritur Therefore If the Fiar survive the Whitesunday but dieth before the Martinmass if he will have any part of the Martinmass Duty Or if it will belong entirely to the Relict Liferenter or next Fiar Answer It is thought That he nor his Executors would have no part of that Duty being payed for the said Year betwixt Whitesunday and the next ensueing Whitesunday Seing he deceased as said is before Dies either cessit or venit Monmouth In some places Grass-Roums are set from Whitesunday to Whitesunday but the Term of Payment is Candlemass and Lambmass Quaeritur If the Fiar decease after Martinmass after it is set but before the first Term of Payment if he will have any part of that Years Duty Answer It is thought he will have the half and what ever be the Term of Payment Dies cedit at Martinmass for the half Year preceeding Seing for the Duty of Corn-lands though payable betwixt Yule and Candlemass yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid Quaeritur What is the reason of so great difference betwixt these and Grass-Roums Answer That the Duty being payed for the Cropt the Terms of Whitesunday and Martinmass are respected so that the Fiar surviving Whitesunday his Executors have Right to the half of the Year upon that consideration as appears because the Lands are then fully laboured and Sowen and whoever survives Martinmass has Right to that Terms Duty because the Cropt is then fully collected But as to Grass-Roums set as said is at Whitesunday to Whitesunday thereafter the Grass only is to be considered which upon the matter is the Cropt of these Roums and the reason why the Duty of the whole Year is payed at Martinmass appears to be that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts at or before that time Quaeritur If the Fiar decease after Martinmass and has not uplifted the Duty will the same divide betwixt him and the Liferenter And if he has uplifted the same if his Executors would be Lyable to refound the half to the Liferenter Answer Cogitandum For if it be not uplifted it appears reasonable that the Liferenter should have the half and if it be uplifted it appears hard that the Fiar having uplifted the same Jure suo bona fide should be Lyable to render any part of the same specially seing the Liferenter may have the same advantage if she should decease after Martinmass If Corn Roums should be set in the same Terms That the Duty should be payed at Martinmass after they are set Quid Juris Seing the said payment will be before the next Cropt and the Fiar may die before both the Terms of the next Year for which the Duty is due Answer It is thought that the Fiar cannot set the said Lands in manner foresaid in prejudice of the Liferenter And if the Tennent take the same that way it is upon his own hazard And the Liferenter would force him to pay the Duty after the ordinary Terms of the Country Quaeritur If a Tennent have a Liferent-Tack and he Die after Whitesunday If the Tack will not continue for that Year Seing the time of Removing of Goods necessary for labouring is past before his decease and Roums being set from Whitesunday to Whitesunday annus coeptus as to Labouring habetur pro completo Vide Annuum Legatum Quaeritur If there be not the same reason as to Liferenters in Labouring or possessing the Land with their own Goods seing their Executors cannot remove the Goods after that time and the Year of the Liferent is begun S. Act Salvo QVaeritur If Ratifications in Parliament with the Clause That they should not be Lyable to the general Salvo Will prejudge a third Petson having undoubted Right and having been secured by a general Law viz. The Act Salvo Jure The Ratification being only a private Act and the persons concerned not being called Seasin A Posterior Seasin but first Registrate whether will it be preferred to the prior Seasin Registrate thereafter though debito tempore Registration of Seasins IF a Seasin of Reversion granted by a Bishop will militate against the Successor albeit it be not Registrate in the Register of Seasins Ratio Dubitandi The Bishop doth not succeed as Heir And yet he cannot be said to be a singular successor and Bishops they are Corpora singula Special Services and Precepts of Clare constat A Person being served Heir-male or Provision in special in certain Lands and deceasing before he be Infeft Quaeritur If his general Heirs will be lyable to the Debt of that person to whom he was served Special Heir The same Question may be moved upon a Precept of Clare constat whereupon Infeftment has not followed seing in neither of the said cases there is Aditio Haereditatis before Infeftment whereas in general Services there is Aditio as to any Estate whereupon there is no Infeftment Servitude and Extinguishment thereof IF a Person who has Right to a Servitude out of other Lands should acquire also Praedium Serviens Quaeritur If eo ipso that he has Right both to Praedium Dominans Serviens the Servitude doth extinguish Quia res sua nemini servit and if he should thereafter Dispone Praedium Serviens whether the said Servitude not being reserved either he or his singular successor in the Right of the other Lands can claim the same Or if he should Dispone praedium Dominans without mention of the Servitude but with all Liberties and pertinents whether will that Servitude revive as being only Sopita for the time while both Lands belonged to one person but not extinct by any Discharge or deed freeing the Lands of the same If a person has constitute by Writ a Servitude and thereafter Dispone his Lands without excepting of the same Quaeritur If