conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
Friends should accordingly name two Persons would the Right be valid Ratio Dubitandi 1. Mandatum expirat morte mandantis And if he could not dispone himself on Death-bed much less could he impower another Person to dispone after his Decease 2. Paria sunt indebito tempore fieri in tempus indebitum conferri 3. A Deed cannot be said to be a perfect Deed inter vivos unless it were consummate in substantialibus and the Person Cui is de substantia 4. No Power can be given by a Person who has no Right himself but as Procurator or Commissioner and such Powers do expire with the Granter 5. There can no Right validly be given incertae personae or ex alieno arbitrio in futuro 6. The Defunct could not give Power to the said Friends to dispose of his Personal Estate after his Decease and à pari or majori he could not give such a Power as to his Heretable Estate Mr. John Bayne of Pitcairly Disposition IF a Person get a Right and Disposition omnium Bonorum Whether will he be lyable to the Debt of the Disponer Actio ad Distractum EX Contractu non agitur ad Distractum sed ad implementum Contractus Transactio non aliter annullantur ex defectu Implementi quam si praecesserit monitio ad implendum deinceps culpa implere Debentis Hering de Molend Quaest 11. N. 132. 133. Division of the Duties of Lands betwixt Buyer and Seller BY the ordinary Custom when Lands are sold If it be a Whitsundays Bargain the whole years Duty is assigned If it be a Martimass-Bargain only the half year Quaeritur If they be not assigned Quid Juris as to the said Duties Answer It is thought the Buyer will be in the Case as we have said of a Compryser But the Question will be if the Bargain be made after Martimass and before Candlemass the ordinar Term of Payment of Victual And then it is thought that the Buyer should be in the same case as if the Bargain had been made precisely at Martimass if the price be then payed or in condition to be payed with the Annualrent from Martimass Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass Donatio inter Virum Vxorem A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands and making Faith not to question it Quaeritur If she may so far revock a Donation as to her Husband that she may crave the equivalent Donatio inter Virum Vxorem being ipso jure Null But so that morte confirmatur Quaeritur If a posterior Creditor of the Husbands should Comprise Lands given to the Wife during the Marriage before the Husbands Death will his Death confirm the deed in prejudice of the Creditor The Comprysing being medium impedimentum If at least the Legal will belong to the Wife The Husband not Revocking If the Husband decease without Revocking Quaeritur If the Wife will have Action against the Heir upon that ground that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond Lands being Disponed by a Husband to his Wife and thereafter he having Disponed the same to another person in Lecto aegritudinis Quaeritur If his Heir may question the Right in Lecto Ratio Dubitandi It is not made in his prejudice but of his Wife And the Revocation is only in favours of the Receiver of the Disposition A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife Quaeritur If eo ipso he has Revocked Tacité the said Donation Ratio Dubitandi The Donatio inter virum uxorem is Null and morte tantum confirmatur And before it became valid the said impediment interveened And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way his Silence and not Revocking is upon the matter fraudulent and in prejudice of the Creditor It is thought That it is to be considered if the Debitor or his Heir have no other Estate out of which the Creditor may be satisfied In that case the Creditor may have recourse against the Lands Disponed to the Wife If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted Ratio Dubitandi That if the contracting the Debt after such Donations import Revocation it ought to be only in favours of the Creditor and not of the Heir who ought to be in no better case and the Wife's Action against the Heir may be upon that ground That out of the Estate belonging to her unquestionably as to the Heir the Debt whereto the Heir is Lyable is satisfied A Woman having made a Disposition to a third person to the behoof of her Husband and having ratified and made Faith before a Judge Quaeritur If she may question the said Deed as being Donatio inter Virum Vxorem notwithstanding her Oath Answer It is thought she may And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis otherwise eâdem facilitate that a Wife is induced to give she may be induced to Swear and the Law should be Elusory And such Oaths ought to be understood only that they are not compelled and that they shall not question such Deeds upon that head But not in relation to any other Ground whereby they may be questioned As v. g. Minority and that the Wife has Curators not consenting And that the Husband if she has no other is Curator and cannot Authorise her to any Deed in rem suam And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands Donatio mortis Causa THere being a Donation inter virum uxorem Quaeritur The Donator Deceasing and the Donant Surviving and not Revocking whether will the Gift be Valid Ratio Dubitandi Such Donations aequiparantur Legatis being always Revocable And Legatars Deceasing before the Testator their Legacies are void Donatio non acceptata IF a Donation be made but not accepted Quaeritur If a Creditor may Compryse the same and accept Vide Legacy quest 4. Donators upon Recognition and Forefaulture AFter Lands holden of the King had fallen under Recognition they fell also under Forefaulture and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition and thereafter another Gift was given upon the Forefaulture It not being known by the King or his Officers the time of the first Gift that the person Forefaulted had committed Treason Quaeritur Which of the Donators should be preferred Ratio Dubitandi That Recognition is but a Casuality And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure And all Casualities seem to be
FailÈieing either to the Husbands Heirs or Wifes Heirs And in the case foresaid where after the Heirs of the Marriage there are diverse substitutions in favours of the Wife 's other Heirs and after all in favours of the Husbands Heirs In the first if the Wife's Heirs be only substitute FailÈieing Heirs of the Marriage the Husband is understood to be Fiar Because as it is the essence of a Fee to have power to Dispone and if the Fiar do not Dispone to transmit to the Fiars Heirs and to be represented by them And in dubio cujus haeredibus maxime prospicitur That person is thought to be Fiar But in the second case there being diverse degrees of Substitutions and all in favours of the Wife and her Heirs before her Husbands Heirs The Wife is thought to be Fiar And upon the FailÈeure of all her Relations the Husbands Heirs in the last place are Heirs of provision to her And yet in the said case of Girvanmains It is thought that the Husband is Fiar there being these specialities in that case 1mo The said Estate is Disponed to the Husband and his Spouse the longest Liver as said is and their Heirs of the Marriage and there is no Liferent settled on the Husband whereas there is a Liferent of a part of the Lands given to his Wife in satisfaction of what might fall to her either of her Fathers Estate or of her Husbands 2do There is a provision that if there should be no Children of the Marriage to succeed to that Estate the Husband should be obliged in that case he and his Heirs to denude themselves upon payment of a certain Sum of Money and he could not denude himself unless he were Fiar So that it was intended that the Husband should be Fiar but with the foresaid Provision to denude in the case foresaid and to be restricted to a Tocher For which and other Reasons arising upon the Contract The Antecedentia and Consequentia being considered It is thought that the Son should be Heir to his Father as Fiar A Bond being granted to a Man and his Wife and their Heirs Quaeritur What Right the Wife will have to the Sum Ratio Dubitandi that there being no mention that the Sum should be due to the longest Liver and the Heirs of the longest Liver but to them both and their Heirs It appears that the Heirs should be understood the Husbands Heirs as Personae digniores Answer It is thought that seing there is an joint Right to the Husband and the Wife and it is the custome of Persons of their Quality being mean Country Persons that the longest liver should enjoy all The Wife indubie should enjoy the haill in Liferent and should have the Fee of the half De Feodo Pecuniae Nominum PEcuniae Nominum nec proprie Ususfructus nec Feodum est ususfructus enim definitur jus utendi fruendi salvâ rerum substantia pecunia autem sive in specie sive in nominibus est res fluxa Et si in specie sit facile diffluit usu consumitur Nomina autem etsi initio idonea debitoribus decoquentibus inania sunt Quemadmodum vero ob utilitatem receptum est ut pecuniae sit quasi usus fructus ita est quasi feodum istud enim proprie loquendo est tantum in rebus soli stabilibus feudis tantum non vero allodialibus ita dictis quod nullo laudato recognito alio dominio ad proprietarium pertinent pleno integro jure nec libato diviso in Dominium directum utile Licet autem apud alias Gentes praedia quaedam allodialia sint nobis omnia sunt feudalia Et Feodum quidem in feudis de proprietate dominio dicitur prout distinguitur ab usu fructu aliis quae circa feuda versantur juribus Per Metaphoram tamen Feodum transfertur ad pecunias nomina ita ut is in Feodo esse dicatur cui jus summum proprietatis competit plaerumque vero evenit sive seculi vitio in nova commenta prurientis sive Notariorum Incuria aut imperitia ut Chirographorum stylus a primaeva simplicitate deflectat sic haud raro nec immerito dubitatur penes quos sit pecuniae Nominum Feodum Quaestio Prima SI igitur Sempronius Pater Pecuniam crediderit Chirographo stipulatus sit eam usuras sibi solvi si superstes sit Eo autem per obitum deficiente Titio filio suo Titii haeredibus quibus dederit seu assignatis Ita tamen ut Sempronio liceat de pecunia Nomine disponere Titio haeredibus ejus inconsultis nec consentientibus Quaeritur In ista facti specie ad quem nominis istius Feodum pertineat Et videri possit Feodum ad Titium filium pertinere cum nulla sit mentio Sempronij haeredum Et Feodi ea sit natura ut ad haeredem transeat qui in jure eadem persona censetur Dicendum tamen Sempronium in Feodo esse penes Titium vero ejus haeredes spem jus successionis Nam quae Feodi proprietatis vel essentialia vel naturalia sunt ut sciêª Dominus de re sua disponere possit ut ea ad haeredes transeat ea Sempronio competunt potestas enim disponendi etiam non expressa inesset Titius Sempronio substitutus in jus ejus succedit pro haerede habetur provisionis saltem ut loquimur idque ex eo elucescit quod si accessisset etiam hypotheca sasina terris pro Pecunia in hypothecam datis iâ—sdem conceptis verbis Sempronio sciêª eo deficiente Titio filio ejus haeredibus assignatis Titius eo casu extra omnem quaestionis aleam haeres foret ubi autem eadem sunt verba eadem ratio idem jus est esse debet Quaest 2da IN ista facti specie supra memorata Quaeritur etiam an Sempronius de isto nomine disponere possit nedum inter vivos sed Testamento aut codicillis eo legato cum debitum Chirographarium mobile sit Respondendum videtur Sempronium eo ipso quod tam haeredibus quam executoribus praeteritis Titium elegit substÃtuit sibi instar haeredis provisionis interciso ordinario succedendi ordine quasi Tallia Titium in ea re haeredem esse voluit Voluisse etiam nomen esse haereditarium de quo moribus nostris nisi inter vivos non licet disponere nec de ea re est Testamenti factio Nec ad haeredem institutum in mobilibus seu executorem nominatum pertinet quod ab intestato ad Executorem dativum non pertineret Quaest. 3tia IN ista etiam specie Quaeritur Si Chirographum in actorum codicem seu Regestum sive ut loquimur Registrum referatur vel a Sempronio vel eo mortuo a Titio ut instar sententiae habeatur ex eo sit
Scylla non minus exitiosa Quaest 15. SUperius Respondimus Titium ejusque haeredes Sempronio in Chirographo substitutos ei haeredes esse provisionis Quaerendum an Sempronii Creditoribus teneantur quidem dicendum est eos teneri obnoxios esse nam omnis haereditas etiam particularis in Chirographo praedio aut alia re particulari eatenus est successio in universum Jus secundum haereditatis definitionem ut nedum commoda sed incommoda onera ad eum pertineant redundent sed quatenus debitis subjaceat oneribus quaestio difficilior nec levis momenti est alio forte loco ubi de haeredibus Talliae provisionis aliis particularibus haeredibus agetur magis opportune ventilabitur Feus IF a Feuer may Refute as in the case of other holdings The difference being that Feuda are Beneficia invito Beneficium nec datur nec retinetur Whereas Feus are Emphyteuses and upon the matter perpetual Locations and as in Locationibus either ad tempus how long so ever the Conductor cannot renounce so their appears to be eadem Ratio in Feus Whether there be Non-entry in Feus and the Liferent Escheat of the Feuer doth belong to the Superior seing they are not proprie Feuda And yet it is thought sapiunt naturam Feudi If there be Non-entry Whether before Declarator the Superior will have right to the retoured Duty which is the Feu-duty besides the Feu-duty due to himself And after Declarator to the full profits Feuda Nobilia FEuda nobilia sine Nobilitate dari possunt Adeo ut aliquis ab Imperatore investiri posset in Ducatu aut Comitatu nec tamen Dux aut Comes sit Thes Besold in litera I. 18. verbo Innhabern des p. 428. Fiar 1. WHen Lands are Disponed to a person without mention either of Heirs or that he is Fiar or Liferenter or that they are Disponed Heretably Quaeritur If he be Fiar 2. In Conjunct Fee where there are no degrees of Substitution whether is the Husband or Wife Fiar 3. When Lands are given in Conjunct-Fee to the Husband and Wife and their Heirs who is Fiar 4. If the Husband be Fiar whether at least the Heirs betwixt him and her are to be understood his Heirs or his Heirs whatsoever 5. If Lands be Disponed to two Brothers by their Father and their Heirs if they be both Fiars ex semisse 6. If when Lands are Disponed by a Father to two Brothers and the Heirs of their Body if one die without Heirs of his Body whether it be substitutio reciproca 7. When Lands are Disponed to Husband and Wife and their Heirs of the Marriage and these failÈieing the half to the Husbands Heirs and the other half to the Wifes Quaeritur Whether the Husband be so Fiar that the Wifes Heirs failÈieing Heirs of the Marriage will be Heirs of Provision as to the half 8. When it is intended that the Wife should be a Joynt-fiar If the Right should not be to the Husband and her and after their Decease the half to his Heirs and the other half to her Heirs 9. When a right is given to Two Persons and to the longest Liver of them Two and the Heirs of the longest Liver who is Fiar And if the Fee be in pendenti 10. When the Fee is provided by Contract of Marriage to Bairns and accordingly a Right is granted in the foresaid terms there being no Bairns for the time Quaeritur When a Child is born whether the Fee be immediatly in its person 11. If it be in solidum in its person and thereafter others be born Quaeritur Quid juris and if concursu faciunt partes 12. In Conjunct-fees where there is no substitution the Heirs determine the Fee 13. Where there are degrees of substitution The person whose Heirs succeed first is Fiar And all the Substitutes thereafter are Heirs of Provision to the Fiar by progress 14. When a Band is taken to a person and his Heirs if his Grandchild by a Daughter decease having no issue whether the Child being Heir his Father will succeed to him albeit his Father cannot be Heir to the Grand-father and haeres haeredis should be haeres instituentis Fiars of Bonds A Bond being in these terms To a man and his Wife and the Heirs of the Marriage which failÈieing to the longest Liver of them two and the Heirs of the surviver Quaeritur who is the Fiar A Bond being granted to a Husband and his Wife and the longest liver of them two in Conjunctfee and to one of their Sones expresly named and the Heirs of his Body whilks failÈieing to the Heirs to be procreat betwixt the Husband and the Wife whilk failÈieing to the Wifes Heirs and Assigneys Quaeritur Whether the Fee of the said Sum pertaineth to the Husband or to the foresaid Son or to the Wife Ratio Dubitandi That the Right of Succession terminates upon the Wife and her Heirs which seems to import that she is Fiar 2do As to the Son the said Sum being provided to his Heirs in the first place It seemeth that the Fee should pertain to him Seing the Heirs of his Body are to succeed in the first place and the Fee of Money as it is said of the Vsufructus of Money That it is quasi Vsufructus is quasi feodum Proprietas and properly that is said to be Property which belongeth to a person and descendeth to his Heirs And yet it is thought that the Fee of the said Sum doth belong to the Husband in respect the Money being his own was lent by him in behalf of himself and the foresaid persons and albeit when a Bond is conceived simply to a Husband and his Wife in Conjunctfee and to her Heirs and assigneys she is Fiar for the reason foresaid that it is to belong to her and her Heirs only Nevertheless when there is diverse degrees of Substitution of Heirs of diverse persones and of a Wife in the last place the person whose Heirs are provided for in the first place ought to be understood to be Fiar and these in secundis tabulis and in a more remote degree to be only Heirs of Provision FailÈieing the former and if the Son had survived or his Heirs It is absurd that they should be Heirs to their Mother and not to their Father And that the Mother being Fiar should have power to Dispone of the Sum in prejudice of her Husbands Children And albeit the said Sons Heirs be first named yet it is thought that he is not Fiar seing he is to be Heir of Provision to his Father as if an Infeftment were granted to his Father and Wife in Conjunct-fee and failÈieing of them be decease to a certain person their Son and the Heirs of his Body The Son in that case would be Heir of Provision A Bond being granted to a Man and his Wife and longest Liver of them Two and their Heirs And the Wife
therefore locus est Juri accrescendi as in the case of Heirs Portioners before they be served Heirs if some of them decease their Right will accresce to the Survivers Jus Mariti MArriage being dissolved within Year and Day by our Custom the Husband has neither Tocher nor any other Benefite by the Law as Courtesy Neither the Wife if she survive will have Jointure or Terce if there be no Children Quaeritur if the Husband has not Jus Mariti as to Moveables whether Extant or consumed Ratio Dubitandi These other Provisions are presumed to be in respect of a Marriage durable and standing at least for the said space whereas the Right foresaid is founded upon the Relation of Maritus ipso momento that he was Married he was Husband But it seemeth that seing the Wife would not have Jus Relictae by the Death of her Husband he should not have Jus Mariti ne Societas iniqua Leonina sit But as to bona consumpta it seemeth that fecit sua being bona fide Possessor If a Husband lying at the Horn and being thereafter relaxed will lose only the Mails and Duties of his Wifes Lands resting before and becoming due during Rebellion Or if his Jus Mariti and Right to these Mails and Duties during the Marriage will fall entirely seing he might Assign his Jus Mariti and his Right not being during Life he is in the case of an Assigney to a Liferent which falleth under the Assigneys single Escheat If a Provision in a Contract of Marriage with a Widow having given a Tocher that her Husband shall not have Jus Mariti to a certain Sum nor to any other Sum except the Tocher specially she having diverse Children of her first Marriage be not valid Lady Red-house A Bond being conceived in favours of a Woman conditionally who thereafter Marrieth and dieth before the condition exist Quaeritur If the Husband will have Right Jure Mariti Answer he will per Legem quae Legata ff de Reg. Juris Quid Juris As to conditional Legacies if the condition exist after the Husbands Death if they will belong to her self Vide the said Rule and the reason of the Difference If his Jus Mariti may be Comprysed And if it may whether the said Right will fall under the single Escheat of the Compryser If a Husband be Forefaulted Quaritur If his Jus Mariti falleth under the Forefaulture Ratio Dubitandi The Husband has Jus Mariti upon pretence and in order to Administration and the Law presumeth that he will Administrate as he ought and the Relation and Jus Mariti haeret ossibus and is personal There being a Provision in a Contract of Marriage that the Woman should be excluded from any Interest in Terce or third of any other part of Moveables so that the Terce is no Communion as to her Quaeritur If notwithstanding there will be Communion as to the Husband so that he will have Jus Mariti as to any Moveable Estate belonging to his Wife A Woman having Right to an heretable sum if Diligence and charges be used for payment Quaeritur If ipso Jure it becomes moveable so that the Husband has therafter Right Jure mariti Answer It is thought that as to the Decision of this question much will depend upon circumstances and if diligence be used in order only to secure the Sum and that the Debitor be suspect the Sum will be still heretable specially if adjudication follow in favours of the wife and her Heirs Quaeritur If a Provision in a Contract of Marriage that the wife should retain a Right of sums belonging to her and that she may dispose of the same without consent of her Husband be valid and to be sustained Answer Affirmative seing such pactions are not contra bonos more 's or jus gentium But on the contrare are conform to the Roman Law and when any advantage is introduced in favours of a Husband or any Person jure positivo or municipali they may renounce the same Mr. Iohn Arthur Quaeritur If the Husband be Lyable to the Wifes debts quatenus Answer It is thought he should be Lyable quia penes quem Emolumentum penes eum onus But it is thought he should be Lyable only quatenus Locupletior and according to his intromission and as a Tutor the Wife being in Tutela mariti and though he has Right jure mariti Communionis to that which belongs to his Wife that should be understood Debitis Deductis If after the Marriage is dissolved it be found that there was a Debt belonging to the Wife during the Marriage Quaeritur If the same will belong to the Husband surviving Jure Mariti Answer It is thought The Law gives what belongs to the Wife to the Husband as Administrator And the Law presumes that he Administers behoovefully But if a moveable Debt was not known the time of the Marriage and is yet due there may be some Question and yet it is thought that it should fall under the Communion If the Wife be provided in satisfaction of Terce or Third Quaeritur In that Case If such a Bond will fall under Communion or if it will belong to the Husband Jure Mariti Cogitandum Jus Mariti Relictae IF the loss ariseing by the act of Parliament anent Vnlawful Ordinations and Marriages be understood to be a Privation so that such Rights cease as if they were not Married amittuntur non commutantur and the wife and Husband have Right to their own estate free of jus mariti relictae as if they were not Married Lady Aitoun Jus Relictae A Woman by contract of Marriage being provided to a Liferent of all that should be Conquest whether Lands Sums or Goods Quaeritur If she will have Right to the half or third of the moveables jure relictae or if eo ipso that she is provided to and accepteth a Liferent it appeareth that she renounceth her Communion Whereas on the other part that provision being in her favours and she not being excluded it seemeth she and her Executors should not be excluded by it If the Husband may by Donations in Liege poustie prejudge the wife and bairns of their part Answer the nature of the Gifts is to be considered if they be so immodicae inofficiosae as it may be presumed they are given of purpose to frustrate them Jus Superveniens IF a Person having no Right to Lands should dispone the same so that the acquirer should be infeft upon his Resignation and there after the disponer should acquire the same and being infeft upon the resignation of the Heretor should dispone and resigne in favours of another for onerous causes so that he should be infeft Quaeritur which of these who acquired these Lands from the same author will be preferred That Brocard Jus Superveniens c. will it hold in the case where the Right is supervenient not to the disponer but to his heirs
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
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
on a Decreet turned thereafter into a Lybel may be loused d. 284. Arrestment cannot be loused upon pretence that it was laid on after the Decreet was Suspended d. 263. First Arrestment tho last Decreet of forth-coming being sine mora found preferable d. 110. Arrestment upon a Dependence d. 237. ARTICVLATVS LIBELLVS see d. 314. ASSIGNATION see d. 123. Assignation after Summonds Execute not sustained as a Title albeit the Cedent concurred d. 46. Assignation Blank in the Creditors Name d. 54. Assignation by a Wife to her Husband by her Contract of Marriage d. 195. Assignation not intimate in the Cedents Lifetime d. 51. An Assignation to Maills an Duties in all time comeing obliges the Cedent and his Heirs to grant a Disposition whereupon the Assigney may be Infeft d. 89. ASTRICTION d. 293. d. 351. see d. 173. ATTESTER of a Cautioner acquite proving that the Cautioner was then Repute Responsal as to that Debt d. 121 AVAIL of Marriage see d. 415. B. BACKBONDS d. 211. see d. 162. Backbond to the Exchequer see d. 198. Backbonds by Comprysers .. d. 374. BACKTACK see d. 57. BAILIF see d. 131 BANKRUPTS d. 94. see d. 198. d. 249. d. 282. d. 287. d. 292. BANNA see d. 13. BARON d. 209. BASE Infeftments d. 461. A Base Infeftment sustained to a Wife as publick others being in possession by Redeemable Rights from the Husband tho he was not in possession himself d. 100. BEHAVING as Heir d 400. d. 450. d. 462. BENEFICE see d. 115. BIDEING be see Abideing be a Writ Litera A. BILLS of Exchange d. 231. d. 365. see d. 236. BISHOPS see d. 194. d. 375. BLANK Writs d. 334. d. 403. see d. 54. d. 139. BONAE fidei possessor d. 123. BOND blank in the Creditors Name d. 139. A BOND being granted by a Wife and her Husband with a Clause to Infeft tho null as to the Obligement to pay the Sum yet valide as to the Right of her Lands d. 6. d. 25. A Bond granted by a Father to a Daughter is revockable if it be not compleated by delivery or by Infeftment if it be Heretable Or by Assignation intimated or confirmed Testament if it be Moveable d. 106. Bond of provision d. 140. see d. 384. A Bond to a Husband and his Wife and the longest liver and the Heirs betwixt them and to the Heirs of the longest Liver Found to make the Husband Fiar d. 144. A Bond reduced being Subscribed by one Notar in a matter of Importance d. 135 A Bond whereof the Term of payment was long after the Date and Annualrent to be payed in the interim Found Heretable quoad fiscum d. 39. Bonds granted on Death bed d. 402. d. 449. Bonds of provision undelivered tho prior in date but posterior in delivery cannot affect the Fee interveening d. 129. BONORVM d. 282. BOOKING of Seasins see d. 384. BOX of Journeymen see d. 70. BURGAL Lands see d. 22 d. 190. A Burges that is not Incola see d. 430. BURGHS of Barony see d. 395. BURGHS Royal. see d. 78. d. 124. d. 190. If Burghs Royal cannot fine Unfreemen for Tradeing but only Charge them to desist d. 79 C. CAPER see d. 247. CAPTIONS see d. 127. CAVSA data non secuta d 308. CAUTIONER see d. 26. d. 31. d. 50. d. 55. d. 121. d. 122. d. 147. d. 213. If Cautioners may take Assignation and burden the Cocautioners with the whole Debt d. 212. d. 228. If Cautioners will be liberate when Magistraters are Lyable loco Rei ex delicto d. 91. CERTIFICATION in Improbations d. 210. d. 230. Certification in an Improbation of an Old Comprysing not sustained d. 50. Certification pro confesso see d. 243. Certification in an Improbation being Extracted production of the Writt immediatly thereafter will not Repone against the same d. 80. Certification in an Improbation not granted where the Defender produced a more Eminent progress than the Pursuer untill that were discussed d. 113. In a CESSIO bonorum The ordinar Oath runs in thir Terms That the Bankrupt had made no fraudulent Right since the subscribing of the Disposition d. 292. CHAMBERLANES see d. 37. CHARGES upon six days benorth Dee d. 222. CHILDRENS Provisions d. 344. d. 373. see d. 418. d. 437. CIRCUMDUCTION of the Term. d. 307. Circumduction of a Decreet Reponed against as to Personal but not as to Real Execution d. 98. CITATION d. 243. see d. 232. d. 367. Citation of Parties out of the Country d. 170. CLAUSE cum Curiis Bloodwitis see d. 5. The Clause cum Molendinis multuris Importeth freedom from Astriction d. 1. Clause de non alienando d. 136. Clause in favours of a Husband and Wife and their Heirs makes the Husband Fiar as persona dignior d. 85. Clauses of Conquest d. 359. Clauses of Conquest how to be understood in Contracts of Marriage d. 9. COALS see d. 220. Coals constant and casual Rent how modified d. 175. COLLECTORS Fee see d. 65. COLLEGIAT Church see d. 112. COMMISSARY-Court see d. 314. Commissaries see D. 221. COMMISSION see d. 207. d. 208. Commission for taking of a Strangers Oath in Holland sustained tho not subscribed by the Party being Subscribed by the Judges there d. 239. COMMISSIONERS see d. 188. COMMUNION betwixt Husband and Wife d. 136. see d. 302. d. 315. COMMUNITY and Pasture and casting Peats and Truff d. 149. COMPENSATION d. 191. d. 326. d. 366. see d. 200. d. 211. Compensation a quo tempore to be sustained d. 309. Compensation against a Comprysing d. 362 Compensation when granted against an Assigney upon a Debt of the Cedent d. 3. COMPETITION betwixt Assigneys and Arresters d. 201. Competition betwixt Donator and Creditor d. 249. Competition betwixt a Compryser and an Annualrenter d. 328. Competition betwixt Creditors and Children d. 384. Competition of double Rights see d. 279. Competition of posterior Creditors with Creditors by Bonds without an Onerous Cause d. 438. Competition of Heirs and discussing d. 69. COMPOSITION see d. 174. COMPRYSING d. 235. d. 251. d. 439. d. 458. see d. 24. d. 44. d. 63. d. 83. d. 133. d. 211. d. 230. d. 203. d. 385. d. 362. d. 374. Comprysing of a Wadset d. 330. Comprysing upon a Charge to enter Heir Null the person at whose instance the charge was having no Right to the Debt the time of the Charge but acquired thereafter d. 47. Comprysing upon a Heretable Bond without Requisition sustained d. 22. Comprysing does not extinguish a Wadset d. 134. Comprysings before the Year 1652. not regulat by the Act Debitor and Creditor d. 60 A Compryser upon Debts anterior to the Debitors Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat d. 178. COMPT-Books of Merchants d. 452. CONDITION see d. 18. d. 32. Condition Resolutive see d. 397. Conditions copulative d. 423. Conditions in Contracts of Marriage si non sint liberi c. d. 364. CONDVCTIO Rei dubiae see d. 108. Couductores
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
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-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-Ward
Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem
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
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
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
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâ—ris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs