thereupon the half of the Estate To see the Decreet Jus Facultatis ATtendendum an quis aliquid faciat jure facultatis an jure servitutis Facultas enim non minus aliis quam nobis patet quia usus qui alii magis ex occasione quam jure conting it Servitus non est nec in eo temporis Diuturnitas quidquam prodest nisi accesserit prohibitio praescribentis patientia ejus contra quem praescribitur Jus Fluviat p. 756. N. 71. sequent Personal Faculty A Person giving a qualified Right reserving Liferent and a Power to dispone Quaeritur If that Faculty may be comprised as a Personal Reversion Quae Facultatis sint ALiqua Dicuntur esse facultatis quorum Libertas a Jure publico permissa est quae non pariunt jus deducibile in Judicium hoc casu nec nos contra alios praescribimus nec alii contra nos Exemplum est in Leg. viam 2da de via publica Aliud Exemplum est in facultate privata quae nullam antecedentem habet causam obligandi ut si Rusticus sua sponte nulla praecedente causa per multos annos Domino certis temporibus capones attulit ex hoc actu merae facultatis nulla oritur Domino actio Quomodo intelligendum Facultati non praescribi ALiqua dicuntur esse Facultatis ad acquirendum novum Jus vel novam actionem vel etiam ad eam Conservandam atque ita pariunt Jus deducibile in judicium Et hoc jus licet sit in libera potestate acquirere volentis non tamen est in potestate illius contra quem acquiritur vel conservatur ut recusare posset Sic adire haereditatem est merae facultatis tamen tollitur praescribitur spatio 30 annorum ergo juri offerendi reluendi praescribitur Hering de Molend quaest 21. N. 17. sequen Jus publicum tribuit cuivis de Populo ut uni ex multis nec privative ad alium etsi ad singulos inde aliquid commodi perveniat Inde illud quod dicere solent Facultati non Praescribi Dicitur de his quae à natura aut publico Jure tribuuntur itaque quocunque tempore nemo praescribit ut qua ierit in publico nullus alius commeet etsi nunquam ea commearit Ea quae de tali facultate dicta sunt non recte Traducuntur ad ea quae proprii privati cujusque Juris sunt id enim Jus est quod ad privatum quemque pertinet privativé ita ut non ad alium Omni siquidem Juri aut facultati quae competit privato cuiquam privativé potest praescribi Idem Ibid N. 20. Faculty reserved to dispone IT being ordinary that a power is reserved by these who Dispone Lands especially to their Friends to Redeem or Dispone or Burden at any time dureing their Lifetimes Quaeritur Whether Lifetimes should be understood civily during their Liege Poustie Item Quaeritur If the Receiver of the Disposition be Dead and the Lands in Non-entry whether the Disponer may notwithstanding Dispone and resign by vertue of the said Power Ratio Dubitandi The said Faculty is upon the matter a Heretable Commission and Procuratory which cannot be Execute post mortem mandantis and there is no person that has the Right Established in his person so that it may be resigned Item If the Lands be in Non-entry and Ward will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior Ratio Dubitandi The Defunct by whose Decease they accrue was the Superiors Vassal And though the Disponer has the same power yet he should have used it debito tempore while the Vassal was on Life and before the pursuer had jus quaesitum On the other part the said power is of the nature of a Regress so that quocunque tempore as in the case of regress Re-entry may be desired by vertue of the said Faculty A Charter being to be granted to a person conform to the said power That Clause Quaequidem pertinuerunt what way it is to be conceaved and if mention should not be made of the person who is Infeft for the present though he be not the person to whom the Right was Disponed with the said Power But either an Heir or singular Successor If the Faculty to Dispone be not upon the matter a Reversion materially and as to the effect of the same so that the person having the same may Dispone albeit he has not jus in re And albeit the Heretor be either Dead or Forfaulted As an order may be used against an Appearand Heir or against the King or his Donator in the case of Forfaulture or ultimus Haeres A Person who had the Faculty foresaid having by vertue thereof Disponed but deceasing before Resignation Quaeritur What way the Disposition shall be made effectual seing the Faculty was personal to himself Fee WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent and to the Bairns in Fee Which FailÈieing to the Father and his Heirs Quaeritur Before there be Children where is the Fee And if it be not fit to take it to the Father to the use and behoof of the Children which FailÈieing to himself and his Heirs When it is intended that by Contract of Marriage the Parents should be only Liferenters and that certain Sums should be provided to the Children so that they do not represent them Quaeritur What way the Fee can be provided to the Children that are not in being Answer The Father may be infeft in Liferent for himself and in Fee for the use and behoof of his Eldest Son and his Heirs Which Fee is to be to the Father and his Heirs to the use foresaid And they are to be obliged upon the Existence of a Son to denude in Favours of him and his Heirs By Contract of Marriage betwixt Knockdaw Sir John Kennedy and Gilbert Kennedy of Girvanmayns The said Sir John having married the said Gilbert's Daughter The said Gilbert's Lands and Estate are disponed to the said Sir John and his said Spouse and the Heirs betwixt them which failÈieing to such of the said Gilbert's other Daughters as he should at any time appoint which failÈieing to the said Sir John's Heirs and Assigneys whatsomever and now the said Sir John being deceased and having a Son of the Marriage Quaeritur Whether the Fee did belong to him so that his Son may be served Heir to him in the Estate It is Answered That in the case of the Duke and Dutchess of Monmouth The Conception of the TailÈie not being unlike it was thought the Dutchess was Fiar albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife and the Heirs of Marriage which
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-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-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
of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
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
Decreet given thereupon and the same standing there was nothing now to be advised but the Decreet ought to be Extracted or at the most a new Commission should be given to the Pursuer The Lords notwithstanding without respect to the said former Decreet did proceed to advise and Vote whether there was alse much proven as to condemn the said Ship It was urged by some of the Lords That tho res were integra and there were no Decreet there is no Ground to adjudge the said Ship upon the pretences foresaid seing the Skippers Oath being a Party had been taken upon the same and he had declared upon Oath that he had changed his domicile and his Residence was at Stockholme and his Oath being taken they needed no other Probation specially seing his Oath is adminiculate with the Depositions of his Wife and others taken upon the Commission foresaid at Stockholme being positive that he had Transported his Domicile there and no other Probation was adduced to the contrary It was farder urged That the Skipper being a Burgess and being for the time in Sueden with his Wife and his Child The Suedish Owners were in bona fide to think that he was such a person as by the Treaty they might make use of as Skipper And what ever could be pretended against him for his own interest ought not to militate against them It was also urged That His Majesty had written a Letter in favours of the Strangers recommending them to the Lords Favour and Justice and it would be thought a strange Return that the Lords should condemn both the said Ship and the Admirals Decreet absolvitor and their own former Decreet It was nevertheless Voted and Found by plurality that the Ship ought to be adjudged upon the said pretences that the Kings Enemie had the interest foresaid both as Skipper and as Owner diverse of the Lords dissenting D. 208. 23. Decemb. 1674. inter easdem THE Sueds having given in a Bill desireing that seing they offered to prove positive that the Skipper had changed his Domicile they might have a Commission to what Judges the Lords pleased for proving the said Alledgance Some of the Lords were of Opinion That the Alledgance being unquestionably Relevant was yet competent In respect the Lords had by their Interloquitor Found that they had already proven presumptively that the Ship in question did not belong to the Kings Enemies and alse long as that Interloquitor stood they needed not prove any farther the onus probandi of the contrair lying upon the Caper And the said Interloquitor being since reversed and taken away as said is It was neither needful nor competent until now to offer to prove positive the said Alledgance The Lords notwithstanding Found by plurality and by one Vote only that the Alledgance was not now competent the President being of a contrair opinion but being carryed by one Vote before it came to him he could not Vote Je me suis estendu trop sur cet Arrest a cause que les plus habiles scavans des Senateurs opinoyent pour les Estrangers Maistre du Navire aucuns des ceux qui estoyent de l' autre coste estoyent parens ou aliez de Luthquharne qui estoyt Partie gagnoit par l' Arrest 2000 Livres Sterl ou environ l' emportoit par une voix seulement D. 209. Pitmedden contra Seatones eod die IT was Found in the case Sir Alexander Seaton of Pitmedden contra Seaton of Blair That Pitmeddens Brother tho he was Appearand Heir to a Baron he could not have a Moveable Heirship because he was not actual Baro. Some were of opinion that as to that Advantage and priviledge of having a Moveable Heirship it was sufficient that the Defunct was of that quality that he was one of these Estates seing a person once Baro tho he be denuded is semper Baro as to the effect and interest foresaid And a Prelate tho for Age he should become unable to serve and dimit yet is still a Prelate as to that effect And the Appearand Heir of a Baron who has Right and in potentia proxima to be a Baron and is Peer to Barons and may be upon the Assize of Noblemen and Barons if he should be prevented with Death before he be Infeft it were hard to deny him the priviledge foresaid that his Heir should have his Movable Heirship And if his Heir would have the benefite as to a Moveable Heirship his Intromission with the same ought to import a Behaviour Lord Forret Reporter D. 210. Mr. David Thoirs contra Tolquhon 2. Jan. 1675. MR. David Thoirs having acquired from John Forbes the Lands of Craigfintry did pursue an improbation against the Laird of Tolquhon of a Bond and Comprysing deduced thereupon of the said Lands against John Forbes of Gask the said John Mr. David Thoirs's Authors Great Grandfather And Certification being granted and being urged that it should be Extracted It was Alledged that it could not be Extracted but ought to be stopt because the said Bond whereupon the Comprysing was deduced and whereunto and to the Comprysing thereupon Tolquhon has Right by progress was granted to the deceast Mr. William Forbes Advocate and Registrate in the Commissar Books of Aberdeen in Anno 1632 And the Extract was now produced which after so long time and the time of Troubles the Registers being all in such disorder ought to satisfy the production being not only adminiculate but also homologate in manner aftermentioned by Patrick Forbes Grand-child and Successor to the Granter and the said John Forbes the said Patrick's Son In sua far as the said Bond was granted to the said Mr. William Forbes a person above all exception and all possible Diligence both real and personal had been used thereupon by Horning Comprysing and Caption and that the Granter had Suspended the said Bond upon diverse Reasons and did never question the truth of the same and Disponed his Estate to Patrick Forbes his Appearand Heir with the burden of his Debts and it cannot be thought but that he understood the Debt in question to have been comprehended under the general of Debts having been so much distressed for the same And that the said Patrick did homologate the truth of the said Bond In sua far as by a Minute of Contract betwixt him and Tolquhon he had taken a Right from Tolquhon to the said Bond and Comprysing and was obliged to pay for the same the Sum thereinmentioned And the said Patrick having Disponed to his Eldest Son William his Estate the said John was served Heir to the said William his Brother and had homologat also the said Bond by Contract betwixt him and Tolquhon whereby he dispones the Lands Comprysed of new again to Tolquhone and ratifies the said Apprysing and Grounds thereof Which Contract albeit when the said John was Minor was made with consent of his Friends and Lawyers most deliberately the said Mr. David Thoirs
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
therein though far exceeding his Debt Bond Moveable A Party having given a Bond to the end that thereupon a Comprysing may be deduced against the Granter For settleing the Estate of his Father in his Person And having granted a Back-bond to pay the person granter of the Bond a Sum of Money with Provision That if he denude of the Comprysing he shall be free of payment of the Money Quaeritur If the Sume be Moveable So that the Relict of the Creditor may crave a part thereof Jure Relictae in respect the Sum is in Obligatione And to denude of the Right of the Comprysing is in Facultate Solvendi Mr. Archibald Nisbet contra Dalgarno Bonds of Provision to Children A Father having granted Bonds of Provision to Children with a Clause That they should be valid though not delivered Quaeritur The same being granted in Leige poustie If they should prejudge the Relict or Fisk Ratio Dubitandi The Granter is Master of them and may Cancel and destroy them Answer Si absit Dolus and the Defunct did intend nothing but to provide his Children they should be considered as a Debt Bond of Relief IF a Person obliged Conjunctly with another upon a Bond to be relieved may not after Registration of the Principal Bond charge for Relief And for that effect to pay the Sum and poind for the same Forbes contra Vdnic Baron Courts QVaeritur If the Superior may pursue before his Baron Court for Non-entry or Ward or Marriage Ratio Dubitandi That the said Casualities are fructus of the Superiority And seing the Baron may pursue his Tennents for the Fruits of Property There is the same Reason that he should pursue for the Fruits of his Superiority And the Vassals have no prejudice but rather Advantage that they are not taken from their own Houses to answer before another Court and to be at the Charges both of Attendance and Process which are greater there And if the Baillie do wrong it may be repaired by a Reduction Bastard IF a Bastard has disponed his Estate in Leige Poustie and Infeftment has not followed dureing his Life Will the King or his Donator be lyable to fulfil the Disposition If a Bastard's Relict and Bairns will have their Legitime though he cannot make a Testament Answer Affirmativé If having Children he may make a Testament and name a stranger an Executor seing the King has not prejudice And his Children cannot complain having their Legitime Cogitandum If at least he may leave Legacies And his Children Executors nominate at the least nearest of Kin and Executors ab intestato will be lyable to the same If a Bastard has Testamenti factionem passivam and may be named Executor or Heir of Provision Answer Affirmative If a Bastard may have an Heir of TailÈie and Provision Cogitandum If a Bastard by a Deed inter vivos has disponed his Estate in Lands by a delivered Write and dyeth before the Right be perfected Quaeritur What way the same shall be perfected or what Action is competent to the Person in whose Favours it is made and against whom Answer It is thought that the King being to succeed to the Bastard his Officers may be pursued and the Director of the Chancery if the Lands hold of the King and if they hold of another Superior the said Superior To hear and see the samen adjudged and Precepts directed Quid Juris If the Deed be not a simple Disposition but a Right to the Disponer in Liferent and another Person in Fee with the ordinary Clauses and Power to alter Answer There may be more Question in this case being upon the matter Donatio mortis causâ Quae Ratio That a Bastard cannot make a Testament whether or not ob maculam natalium Or that by reason thereof they were as Dedititij in Law swa that during Life they were liberi but dyed servi and nulli without power to dispose of any thing Answer That the said Incapacity was ratione natalium Seing these who have no other Heirs so that the King is to succeed as ultimus Haeres have not Testamenti factionem If a Father who is a Bastard will succeed to his Children Answer It is thought he will Bishops IF Precepts granted by Bishops may be execute after their Death If a Bishop being upon the point to be Translated may accept a Renunciation of a Tack not expired and grant a new Tack for moe years in prejudice of his Successor Or if he may set a Tack Bishops Debts SEing Bishops are an Incorporation and do not represent their Predecessor's Person but only the Incorporation and therefore are not lyable to his Debts Quaeritur If at least he be lyable to the Debts of the Bishoprick As v. g. If there be an Annualrent payable out of the same to a pious Use and the preceeding Bishop has not paid the same Will his Successors be lyable personally at least will their Rents be affected by a real Action of Poinding the Ground or like to the same Quid Juris As to the Taxation if a Bishop would be lyable for these bygones that were due by his Predecessor reserving Relief against his Heirs and Executors Bodomaria BOdomaria est Foenus Nauticum quo sub spe majoris lucri pecunia datur Navis Patrono hoc pacto ut salvâ nave tantum cum faenore reddatur relicto interea Hypothecae loco navigii fundo quo perdito capitale interit Besold Thesaurus Bodom Burgh's Liferent Escheat WHat Execution can be against Burghs for their Debt If they may be charged with Horning and if thereupon any Liferent Escheat may follow C. Camera Imperialis CAmerae sententiae an ab iis appelletur an Imperator eas avocare possit de earum revisione vide A. ibi Appellat Captions IF Captions may be Execute after Sun-set seing Poinding cannot be then executed It appears there is difference betwixt Poinding and Caption by reason other Persons that may have interest in the Goods may be concerned in the Poinding which is not in Captions And the Kings Rebels may be taken at anytime and there is no time so fit to take and surprise them as the night Rothemay against Forbes Before the Council found that Captions should not be execute in the night Casualities of Superiority IN General It is thought that all Casualities which are Fructus Dominit directi are to be considered as fructus pendentes of Lands which pertain to the singular Successor unless they be Collecti and they are never thought to be Collecti unless they be at least claimed and pursued for Causa cum qua Res transit REs transit cum sua causa hoc est cum omni cominedo onere Jus. Fluv p. 775. n. 55. In conditionali dominio interest an sub conditione ad nos pertineat an verò à nobis abscedat priori casu quamvis Dominium in Aere stare non putest tamen quoad nos est in pendenti in
his Intromission and disposing of the same A Compryser after expiring of his Comprysing of his Debitors Estate exceeding the value of his Debt Intrometting with or disposing of a part of the same Quaeritur If he may Compryse any other Estate belonging to the Debitor Upon pretence that he is not satisfied Or if the Expiring of the Comprysing and the making use thereof thereafter putteth him in the same condition as if the Lands had been Disponed to him irredeemably and datae and accepted in solutionem So that both Principal and Cautioner against whom a Comprysing is yet running may pretend that the Debt is satisfied At the least that the Creditor should denude himself of that Comprysing cum omni causa Lamertoun contra Mr. John Fairholme A Compryser of Lands holden Ward being Infeft Quaeritur If these Lands will ward by the Decease of the Compryser And if the Marriage of the Appearand Heir will fall Ratio Dubitandi A Compryser is but an interim Vassal for security of his Debt And upon that Consideration such a Right in England is considered as a Chattel If the Comprysing be redeemed will the Debitor be Lyable to refound the Damnage sustained by the Ward and Marriage Quaeritur If the Ward of the Comprysers Heir will determine and expire upon the Redemption Quid Juris in that case of proper Wadsets if the Debitor after Redemption will be Lyable to Refound the foresaid Damnage The difference being that a Comprysing is an involuntar Right and the Wadset Voluntar so that the Creditor seemeth to take his hazard If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right whether the said jus superveniens will accresce If there be a difference betwixt a Compryser and a Buyer from an interposed Person who has acquired a fraudulent Right Viz. That a Buyer acquires a Right for an Onerous Cause and it is just and the Interest of Commerce that he should not be prejudged whereas a Compryser does only Diligence upon his own hazard and the Right Transit cum sua causa labe A Right being acquired bonâ fide from a Person not Inhibited after Comprysing and being Infeft before the Compryser Quaeritur Whether he or the Compryser will be preferable Answer The Lords found in the case of Sir Patrick Nisbet and Hamilton That the Compryser should be preferred Which appears to be hard seing a Comprysing is only jus ad rem and a Legal Disposition And the first compleat Right by Infeftment seems to be preferable and a Comprysing does not import vitium Litigiosi seing the Debitors Right is without Question And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in it self The Debitor or these who have Right to the Legal Redeeming from the Appearand Heir of the Compryser whether doth the Redemption sist the course of the Ward and Marriage if the Heir be not Fourteen Years of Age Answer Affirmative quia resoluto jure principali resolvuntur consequentia Will not the Debitor be lyable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debitor Answer Affirmative and the Creditor and his Heirs should be Indemnes It being the Debitors fault that they are forced to Compryse and that the Comprysing is not Redeemed Whether a Discharge does extinguish a Comprysing the Creditor granting to be satisfied In the same manner that Intromission within the Years of the Legal doth extinguish the same Answer If there be no Infeftment a Discharge is sufficient But if there be Infeftment there must be at least a Renounciation Registrate in the Register of Reversions A Comprysing being Redeemed whether doth the Debitors Right and Infeftment revive or must there be a new Seasin and what way shall the Debitor be Reseased Answer There must be a new Seasin and the same way is to be taken as in the case of a Regress Seing the Compryser as he has a Legal Reversion so there is a Legal Regress Quaeritur If a Comprysing as to all effects be equivalent to a Resignation Ratio Dubitandi That a Comprysing is not only a Legal Disposition but the Compryser may be immediatly Infeft upon the same as upon a Resignation though the Debitor decease If a Compryser get a Right to the Legal of his own Comprysing before it expire by another Apprysing And so Deinceps if there be more Comprysings whereof the first Appryser obtains Right within the Respective Legals Quaeritur when the same doe expire Cogitandum If a Royal Burgh or others having Power to receive Vassals upon Resignation has Power likewise to receive upon Comprysings And if in that case any Composition be due to them If the Lands be Comprysed how shall the Duties be divided Answer If any part of the Lands be sowen before the Comprysing the Encrease will belong to the Compryser And if the Lands be set the time of the Comprysing is to be considered For if the Comprysing be before Whitesunday the Compryser will have Right to the whole Duties And if it be before Martinmass he will have Right to the half And if after Martinmass to no part thereof The Superior being charged with Horning to receive a Compryser and being Denounced will he be Lyable for Damnage and Interest if either he Infeft a second Compryser or a Precept be direct out of the Chancery for Infefting him If upon the Redemption of a Comprysing the Superiors will be obliged to Infeft the Redeemer Gratis Quid Juris If the Redeemer be another Creditor Quaeritur If Comprysings be equivalent to Dispositions and Resignation following upon the same so that the first Compryser is preferable to others even before Infeftment Answer That Comprysings are only Legal Dispositions and do not denude the Debitor without Infeftment whereas Resignation being made in the Superiours hands and accepted doth denude What is the reason then that after Comprysing it is found that the Debitor not inhibited cannot Dispone in prejudice of the Compryser Answer That the Law and the Judge who is Lex animata having in subsidium Disponed to the Creditor the Debitors Lands the same is so affected by the Legal Diligence that the Debitor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor Without prejudice nevertheless of more exact and compleat Diligence of other Creditors who obtaining Infeftment will be preferred to the first Compryser as in the case of Moveables after Arrestment the Debitor cannot dispone the same and yet may be Evicted by another Creditor by way of Poinding If a Superiour be content to take a Right to a Comprysing of Lands holden of him not being willing to enter the Compryser Quaeritur If he may claim a Years Duty when the Lands are Redeemed Answer Negative And he is in
removed and a solid course taken for obviating the like Abuses thereafter that places be not venal but proposed and disposed as rewards of Vertue to able and deserving Men 3tio The Exorbitancy of Fees and Quotts may be Regulated by taking course anent the presentation to settled places that honest and ingenious Men be presented that a Competency of settled and constant Fees be alotted to encourage honest and able Men to pretend to these places and to enable themselves for them and that they may live creditably and honestly in them and Quotts may be abridged and it may be provided that small Testaments may be free of Quot And the Quots of great Testaments may be limited not to exceed a certain Sum which the Estates shall think reasonable to be the highest Quot The Quot Silver which shall be thought fit to be taken may be employed the Commissaries being satisfied of their Fees to pious uses Consolidation A Person having Right by Assignation to a comprysing of Lands holden of himself whether eo ipso that he has the foresaid Right will the Property consolidate with the Superiority Seing a Comprysing is equivalent to a Disposition and Resignation thereupon And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation and to the said Resignation It seems that in that case there is Consolidation In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him And because he cannot Infeft himself the Law doth introduce Consolidation Ratio Dubitandi is That Consolidation is upon the matter a Seasin of the Property And a Seasin being facti cannot be without some deed of the Person in whose favours the Consolidation is to be made Declaring that he accepts a Right to the effect foresaid If it be not fit in such cases that the Superior should before a Notar and Witnesses Declare that seing he has both a Right to the Property and Superiority in his Person It is his will and intention that the Property should be consolidate with the Superiority And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam When a Person Infeft in the Property of Lands acquires and is Infeft in the Superiority Quaeritur If eo ipso there be a Consolidation of both Rights Item if the Superior succeed as Heir to the Right of the Property Quaeritur If in that case there be a Consolidation so that Dominium directum trahit ad se utile Seing the Superior could not Infeft himself and by his purchasing of the Property he enters to the Right thereof and so the Property is consolidate fictione juris in the same manner as if he had been Infeft If vice versâ The Proprietar acquire the Superiority If eo casu there be a Consolidation of both Rights Answer It is thought not And that Dominium utile cannot draw to it directum without Infeftment by the Superior of the Dominium directum If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer be thereafter Infeft as Heir to his Father in the Superiority of the said Lands which belonged to his Father and his Heirs Male Quaeritur Whether there will be a Confusion and Consolidation of the Property and Superiority It is Answered During his Lifetime there will be a kind of Consolidation seeing he cannot be Superiour to himself But it will cease by his Death so that the Superiority will belong to his Heirs Male and the Property to his Heirs whatsomever If he intends that there should be a Consolidation what course is to be taken to that purpose Answer If as in the case foresaid he was Infeft first in the Property and then in the Superiority he must dispone the Property to a Confident And the Confident being Infeft must resign ad Remanentiam to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors If a Superior should succeed in the right of the Property Quaeritur If there be a confusion of both Rights in his Person Answer It is thought though they may appear to be a Consolidation dureing his Lifetime they are nevertheless distinct Seing the right of the Superiority may be to Heirs Male and the Property to Heirs whatsomever And the said Heirs may succeed Respectivè If the said Superiour being Infeft in the Right of the Superiority succeed thereafter in the Right of the Property what way shall he be Infeft therein seing he cannot Infeft himself Answer It is thought that it is not inconsistent that the Superior may give Precept to give Seasin to an Actorney in his name and for his use If the said Superior intend that the Property should be consolidate with the Superiority what way shall it be done Answer He may direct the said Precept in these Terms for Infefting him And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority The Precept may be in these Terms to give Seasin to the effect the Property may be consolidate with the Superiority To be holden both of his Superior in all time coming in the same manner as if they had never been severed If a Precept may not be obtained in subsidium out of the Chancery for Infefting the said Person in the property to be holden of himself seing he cannot Infeft himself Answer It is thought that a course may be taken upon a Bill to the Lords ordaining the Director to the Chancery to direct a Precept upon the reason foresaid Decreets contra Consortes A Decreet of Reduction Ex capite interdictionis being obtained in foro and the Wife being Liferentrix craving to be reponed because Competent and omitted could not be alledged against her being sub potestate Mariti Quaeritur If she prevail may the Husband crave the benefite of her Decreet Ratio Dubitandi Upon pretence that it is found that the Decreet against him was unjust upon the matter And it cannot be just as to her and unjust as to him This Question may occur in many cases As that of two Heirs portioners one being Major and another Minor And after the Decreet against both The Minor being Reponed and prevailing And of a Decreet against a principal having proponed a Defence of payment and having succumbed in probation And thereafter the Cautioner being pursued and upon probation of the same Defence being Assoilied Corporations QVid juris as to Crafts and other Incorporations and as to Bishops and other single Incorporations if in any case they may oblige themselves and their successors Creditors of the Defunct IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir though they do
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
could not Dispone the Lands for an Onerous Cause But if the Father had Disponed the Lands provided by the Contract without an Onerous Cause after the Elder Son his Fee or had resigned of purpose to defraud the Heir of the second Marriage the Father would be Lyable de Dolo and the said Deeds reduceible But the Eldest Son being once Liberate by implement would not be Lyable Tweeddale contra DrumelÈior There being Heirs General and Heirs Male and of Provision and Heirs of a second Marriage being provided by their Mothers Contract of Marriage to certain Provisions whereunto they have Right as Heirs of Provision Quaeritur quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion Answer It is thought that they being Heirs upon an Obligement quasi creditores it would appear that they should be Lyable in the last place in subsidium all others being discust In Contracts of Marriage The Husband being for the most part obliged to provide and resign his Estate for Infeftment to himself and the Heirs Male of the Marriage which FailÈieing to his Heirs Male of any other Marriage which FailÈieing the Heirs Female of his own Body the Eldest succeeding without Division Quaeritur If the Husband should resign and take such a Right upon Resignation but thereafter should resign in favours of other Heirs Whether the Heirs of the Marriage may question the said alteration and what way Ratio Dubitandi That an Heir is eadem persona and cannot question the Deed of the Person whom he represents Answer He is not simply Heir but Heir of the Marriage And as to Obligements in his favours he is Creditor 2do It is thought he may pursue a Reduction of the foresaid Deed as being in prejudice of him as Creditor or he may pursue the Heir of Provision by the posterior Right for implement of the said Obligement Quaeritur When by such Provisions there are other Heirs substitute to the Heirs of the Marriage Whether the Husband may alter the Destinations as to the said other Heirs And if he do if they may question the Deed Answer It is thought that the Heirs of the Marriage are only in Obligatione And the other Heirs in destinatione mariti which he may alter A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent and the Heirs Male of the Marriage whilk FailÈieing his Heirs whatsomever And likewayes being obliged that what he should get by his Wife by any Legacy or Right or Assignation in her favours to secure and employ the same to himself and her in Liferent and to the Heirs of the Marriage which FailÈieing to his Heirs whatsomever And he having accordingly resigned and taken Infeftment to him and her and the Heirs foresaid And a Sum of Money having fallen to her and being uplifted and Discharged both by him and his Wife before Inhibition and thereafter there being Inhibition upon the said Contract at the instance of certain Friends at whose instance Execution is appointed to follow These Questions do arise 1mo If notwithstanding the said Inhibition he may Dispone the Lands Answer He may Dispone the same being Fiar And the import of the said Obligement is that the Right of Succession as to the said Lands should be secured to the Heirs of the Marriage in case the Father should decease in the Fee of the same so that he cannot provide them to other Heirs But it is not intended thereby that the Father should not have the Right competent to all Fiars Viz. That they may dispose of the same if their condition requires Quaeritur If he may at least Dispone the same without an Onerous Cause Answer It is thought not seing all Obligements should be understood ut actus valeant operentur And though the Father be Fiar his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage that he cannot fraudulently and to evacuate the said Obligement Dispone without an Onerous Cause If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed Answer It will be effectual as to the Wife But as to the Heirs of the Marriage there may be question Ratio Dubitandi That there being an Obligement it ought to be once fulfilled by employment to him and his Wife and to the Heirs of the Marriage And on the other part seing notwithstanding the Inhibition he might have disposed of the said Sum if it had been employed there is eadem Ratio if it be not employed Seing his Condition may be such that he cannot employ the same If it be not to be considered what truely his Condition is And if it be such that he cannot employ the said Sum without Ruine That he should not be obliged to employ it Dicis Causa to be thereafter uplifted And if a Process may be intented against his Children to hear and see it Found and Declared that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid both as to Lands and Money Seing if the Money were employed he could and might dispose of the same being Fiar And he is not in that Condition to raise the said Sum and employ it Watson of Damhead Heirs Portioners WHen Women succeed as Heirs whatsomever v. g. Three Daughters they succeed as Heirs Portioners without any priviledge of Primogeniture Quaeritur if the Three Daughters succeeding be deceased leaving each of them Sons and Daughters Will the Eldest Son of any of them exclude the rest of the Children and be Sole Heir Portioner to the Grandfather Ratio Dubitandi As Primogeniture is introduced for the preservation of Families which does not militate in successione Foeminea Women being finis caput Familiae There ought to be no respect to the same in the second Degree nepotibus as there is not in primo gradu in filiabus There being utrinque eadem Ratio Where there is a plurality of Heirs Portioners and some of them become Lapsi may the Debt be recovered in solidum from these who are Responsal Cogitandum If a Barony descend to Heirs Portioners will all have Right of a Barony If any Superiorities belong to the Barony will the Eldest only be Superior Heirs of Provision and substitute WHatever belongeth to a Defunct in Fee and Property whether Land or any other Interest the time of his decease cannot be transmitted but to Representatives or these who are instar haeredum and bonorum possessores as in the case of Lands provided to Bairns of the Marriage the Bairns are in effect Heirs of Provision And if Sumes be provided by way of Substitution to another person after the decease of the Creditor the Substitute will be Lyable to the Creditors Debt other Heirs being discussed Heirs of Provision being oftimes Strangers and in re certa Quaeritur will they only be Lyable secundum vires If a Right of
Lands be given to a person without mention of his Heirs And FailÈieing of him by decease to another and the Heirs of his Body Quaeritur Will not the said person who is so substitute be Heir of TailÈie And if it be so in Lands why not so in Bonds granted to persons and FailÈieing of them by decease to other Substitutes Heirs of TailÈie QVaeritur If there be no Heretable Estate belonging to an Heir of Line out of which the Executor may be relieved of heretable Debts Will the Heir of TailÈie be obliged to relieve the Executor of such Debts Ratio Dubitandi Heirs of TailÈie are not properly Heirs but Bonorum possessores and Lyable to Debts only in subsidium whereas the Heirs of Line and Executors are properly Heirs and the Heir of Line if the Executry be great and more considerable than the Heretable Estate may Confer which is not competent to the Heir of TailÈie or Provision The same Question may be betwixt an ultimus haeres and the Executor nominate of a Bastard Legitimate Haereditas being successio in universum Jus Quaeritur Why is an Heir of TailÈie called Hoeres who succeeds only in rem particularem as Fundus Answer He succeeds in omne Jus talliatum non singulari Titulo But as representing the Defunct in ea re et non interest Whether there be any thing in haereditate quando haeres succedit eo jure et majus et minus non variant speciem If after a person has succeeded as Heir of TailÈie to a certain Barony the same be evicted whether will he be Lyable to the Defuncts Debts Ratio Dubitandi semel haeres semper haeres sibi imputet that adit damnosam haereditatem On the other part the Heir having succeeded and having contracted quasi aditione with Creditors intuitu that the said Land was to be his the said quasi Contractus should be considered as ob causam datam non secutam Heirs of Provision and TailÈie who are to succeed only in rem singularem albeit Titulo universali Quaeritur If they will be Lyable to the Defuncts whole Debt though far exceeding the value of the Succession Or if they should be considered as haeredes cum beneficio Inventarii and should be Lyable only secundum vires There being no necessity of an Inventar the subject of their Succession being only as said is res singulares Answer It is thought that if one be served general Heir Male without Relation to a singular Subject as to certain Lands he would be Lyable in solidum But if he be served only special Heir in certain Lands he should be Lyable only secundum vires There being a Right made in favours of a Person as Heir of Provision of a great Estate and in favours of another as likewayes Heir of Provision of an inconsiderable parcel Quaeritur If the person succeeding almost to all the Estate will be considered as Heir of TailÈie and will be Lyable to relieve the other as Heir of Provision When there are two Heirs of TailÈie in diverse Lands of which the Rent is not equal but the one much disproportionable and less than the other Quaeritur If they will be Lyable to the Debts equally or proportionally Quo casu Heirs of TailÈie may be considered as Creditors ONe having TailÈied his Estate by a Disposition to One and the Heirs of his Body whilk FailÈieing to other Substitutes and by a Contract betwixt him and the Person to whom he Disponed his Estate he having taken the said person obliged to do no Deed in prejudice of the TailÈie but to preserve it inviolable Quaeritur If he the Disponer should make a Disposition notwithstanding may the Heirs of TailÈie pursue Reduction of the same as being made in Defraud of them being Creditors by the said Contract If after the said Contract is Registrate the Heirs of TailÈie have Jus quaesitum So that the Contracters cannot Discharge or prejudge the same Haereditas OMnis haereditas quandocunque aditur cum tempore mortis defuncti continuatur Perez Lib. 2. inst tit 14. Haereditas jacens sustinet Personam Defuncti Ibidem Si Haeres instituatur sub impossibili conditione instituitur pure conditio habetur pro non adjecta Perez ibidem Idem Si institutio fiat ad tempus habetur enim tempus pro non adjecto utile per inutile non vitiatur Ibidem Aditio haereditatis ADitur haereditas vel verbo vel facto verbo declarat scilicet voluntate se velle haeredem esse Facto vero Gerendo pro haerede immiscendo Dummodo sciat delatam ad se haereditatem Regula enim est Omnia quae animi destinatione agenda sunt non nisi vera certa scientia perfici possunt Perez Lib. 2. tit 19. Aditio haereditatis non requirit hodie solennia verba ut olim Cretio Ibidem Haeres Contrahens HAEres videtur contrahere cum Creditoribus iis satisfacere debet Repudiatio Haereditatis QVi repudiavit haereditatem non amplius ad eam admittitur qui tamen a Creditore rite interpellatus est ut haereditatem adeat repudiat non prohibetur eam adire quoad alios Creditores Qui haeres institutus est sub conditione ut non adire ita non potest repudiare ante eventum conditionis Regula enim est Quod quis si habere velit habere non potest repudiare nequit Servus Haeres INstituto servo haerede eo ipso datur libertas sine qua haeres esse non potest Perez lib. 2. inst tit 14. Vltimus Haeres IF a Donator by a Gift of Vltimus Haeres will be Lyable to the Defuncts Debt personally Effeirand to the Estate And if he be not what course shall be taken to affect it If such Universal Successors be Lyable in solidum If they be found to be Lyable Personally unless they give up an Inventar And what shall be the method of giving up an Inventar Heirship Moveable IF a Son that is Forisfamiliat and has a Family will get a Moveable Heirship by his Father Ratio Dubitandi He is sufficiently instructed and aocomodated as Pater Familias And e Contra the other Children though Forisfamiliat will be Executors and Exclude him and in that case there is no Reason that all should be Executry and the Heir Excluded Whether a Coach and Cart will fall under Heirship with the Horses belonging thereto the time of the Defuncts Decease And whether not only the Plough but Oxen or Horses that goes in the same will belong to the Heir An Heretrix being Married Quaeritur If she may have a Moveable Heirship Ratio Dubitandi That she is in Familia Mariti and has none of her own Lady Levin Quaeritur If a Jewel may fall under Heirship upon pretence that it is the Jewel of the Family Ratio Dubitandi Jewels are only Jocalia and Heirship is properly Instrumenta fundi or Domus And in England are called Heir-looms
non procuret eorum grana in mola sua bannaria contundi intra spatium viginti quatuor horarum Idem quaest 11. 139. alii ibi ab eo laudati An Extrui possit Molendinum quod noceat vicino SUperioris Molendini Dominus prohibere non potest ne in inferiori loco alius Molendinum exstruat tametsi ex eo futurum sit ut superioris reditus diminuatur quia ex eo quod quis suo Jure facit teneri non potest licet alteri per consequentiam noceatur distinguendum est qua ratione superiori vicino noceatur nam si ob id solum quod minus frequens sit Superioris Molendini commercium prohibendus non est cum suam posset quisque conditionem Meliorem facere etiam cum alterius detrimento dummodo citra injuriam Si vero ob id quod cursus aquae impediatur ex restagnatione fiat ut superius Molendinum perinde exerceri nequeat prohiberi potest nam sic debet quis rem suam meliorem facere ne vicini Deteriorem reddat Heringius de Molendinis q. 14. n. 30. An Molendinum possit Extrui sine licentia Principis IN flumine publico navigabili aut tale faciente non nisi ex principis licentia sed in alio non navigabili attamen publico sola Gentium authoritate Molendinum extrui potest Idem quaest 15. n. 39. Restagnatio Molendini SI duo in eodem flumine Molendina possederint quoad Restagnationem pacta consuetudo primum servantur his deficientibus qui prior aedificavit primas habet partes Idem quaest 20. n. 10. Vsus Molendinorum Juri Civili ignotus QUae de Molendinis nunc obtinent in usu sunt Juri civili ignota sunt maxima ex parte nam post Imperii translationem ex Oriente in Occidentem tempore Caroli Magni etiam Juris mutatio successit usus Molendinorum alio loco esse coepit quam apud Romanos adeo ut Molendina exstruendi facultas hodie non amplius sit communis sed privata ut plurimum siquidem Principibus Comitibus Baronibus ab Imperatore a Principibus rursus viris nobilibus aliis cum Territorio feudis Jure Clientelae tribuitur ita ut jus Molendinorum pro beneficio Regali aut principali aestimetur Heringius de Molendinis Quaest 7. n. 4. sequent p. 124. Vbi convenit ut pro Familia molatur quid Juris si aucta sit SI in concessione feudi aut Emphyteuseos aut simplicis Conductionis pactum adjiciatur quod debeat accipiens molere frumentum pro tradente ipsiusque tota Familia eaque si aucta fuerit pro omnibus molere debet gratis aut eodem quod convenerat pretio potest enim evenire ut Familia minuatur sic molitor est in lucro Cum igitur penes eum eo casu foret Lucrum debet damnum sentire Idem obtinet in Furno concessione Lignorum pro familia Hering de molen quaest 20. n. 15. sequen If a Mother and her Friends may succeed IF in no case Cognati on the Mothers side can succeed Answer It is thought that they ought to succeed seing the Son succeedeth to his Mother and her Friends and Jus successionis should be reciprocal being founded upon Proximity of Blood which is the same to the Mother and to the Son But in this our Custome is lame and opus est vel constitutione vel Decisione Mutuum MVtuum Commodatum and such other Contracts which are said Recontrahi and not nudo consensu Quaeritur If they may not be said to be Contracted when a Write is Subscribed thereupon obligeing persons to lend Money or Commodare Answer Such Contracts cannot be said to be Mutuum or Commodatum nisi res intervenerit And yet datur ex iis actio praescriptis verbis or in factum N. Non-entry IF the Superior of Lands holden feu will have during Non-entry both the Feu-duty as his own and the Non-entry Duty as Casuality and Fruit of his Superiority The Superior being in Non-entry Quaeritur Though the Non-entry were declared whether the Liferent Escheat of the Subvassal would belong to the immediate Superior Ratio Dubitandi It is not a feudale Delictum and commissum but ex lege which is in favours of the immediate Superior If the Superior suffer the Appearand Heir to be in Non-entry and to possess without a Process for Nonentry If he may have a real Action of poinding the Ground against a singular successor If the full Duties will be due to the Superior upon account of Non-entry following the Ward albeit the Superior was not in possession during the Ward Quaeritur When Lands are Disponed by a Baron to be holden of himself If before Declarator of Non-entry the full Duties be due when the Lands are Disponed without any mention of Retour or Extent Answer If the Lands be Disponed to be holden from the Disponer of the King a proportion only of the Retour Duty is due Because the King and the Disponer having condescended that the old Barony should be extended That part which is Disponed to be holden of the King censetur eodem Jure with the rest of the Barony But when the Baron Dispones a part to be holden of himself without any mention of Extent the full Duties may be claimed at least the proportion of the valued Duty Novo-damus THE King having granted a Charter with a Novo-damus Quaeritur If he should have succeeded to a person having a better Right either upon Forefaulture or Recognition or as next Heir will the Novo-damus barr him Or if the Novo-damus should be understood to be restricted to any Right or pretence or claim the King may have to the Lands by the Right of the Resignant as falling in his hands by Forefaulture of him or his Authors or otherwayes from their Right and the committing of the same either for ever or for a time Quid Juris as to other Superiors having succeeded to persons having a better Right Quid Juris If other Superiors have received any Vassal upon Resignation or otherwayes if they may question their Vassals Right upon another unquestionably better falling to them as succeeding to any other person Lands having fallen to the King by Forefaulture the person Forefaulted having but a Right of Superiority the Property belonging to Vassals Quaeritur If upon Resignation of the Subvassal in the Kings hands as immediate Superior by the Forefaulture a Charter with a Novo-damus will put him in that Condition as if he had from the beginning holden of the King so that the King cannot interpose another Superior by Disponing the Superiority that did belong to the Traitor Ratio Dubitandi That the Novo-damus is equivalent to an Original Grant And yet is thought That the Novo-damus is only an accessory Right and in effect Clausula executiva whereby the King gives the Property that belonged to the Resigner with
haud obtruditur ante Resignationem cum Domino transigitur de Laudimiis si quae alia ab Emptore praestanda sunt Domino ut ab omni periculo incommodo securus sit Non diffiteor longe aliam rationem esse Domini Regis Cum enim Pater Patriae sit nec sit e dignitate sua causari aliquem e subditis sibi iniquum aut infensum nullo delectu aut discrimine Resignationes recipit per eos quibus eam Provinciam demandavit Adhaec Principes de rebus publicis solliciti privatis superesse nequeunt viris clarissimis qui a Rationibus sunt utcunque impigris sedulis haud mirum est si aliquando imponatur sed fraus deprehensa punitur lege consultissima statutum Regis Ministrorum Incuriam Negligentiam Regi haud officere nec difficile adhibere remedia quibus fraudibus incommodis obviam eatur inter alia illud esset haud spernendum si Resignatione facta Instrumentum Resignationis statim conficeretur subscribentibus etiam tam Resignante quam Resignatario apud Cameram Rationum deponatur alioqui Resignatio habeatur pro infecta sic enim constabit Resignationem celebratam incommoda supradicta cessabunt Interea quae pro Negativa disseruimus intelligi velim si compertum sit Resignationem factam nec fraudem subesse eo casu quia omne Jus a Rege ut Juris fonte profluit si scriptum sit sanxit si moribus introductum permisit quasi tacito consensu firmavit quod in alios statuerit Jure uti debet Cum Deus nobis haec otia fecerit aut fieri permiserit statueram ea utcunque oblectare id genus exercitationibus comperto quaestionem in foro ventilari videbar mihi operae pretium facturus si in casu arduo exitus dubii ancipitis quicunque demum futurus sit magni momenti quid Juris sit dispicerem quid meae esset opinionis dicerem id feci eo animi candore ut nec in Regem studio quod mihi semper maximum fuerat nec alio affectu transversum rapi mihi permiserim licet in causa simili etiam res mea ageretur nec socero nec vitrico nec aliis ultimus haeres fui nec assentatione aut aliis artibus ab aliquo opes eblanditus aut adeptus sum nec munus antequam enim ad munera eodem quo nunc mihi ereptum est impetu ab iisdem raptus sum tantum non invitus eorum quae mihi acciderunt praesagus Deo largiente industriae Laboriosae innoxiae alienis haud inhianti favente fui adhuc sum Superior Dominus directus haud unius Vasalli sed cum ista animo agitarem immo persoripsissem haud animo praejudicandi nedum sugillandi amplissimi Senatus sententiam incertus quaenam futura esset sed ne animus negotiis assuetus immo ab ineunte aetate innutritus nunc ignobili otio desidia torpesceret tandem mihi nunciatum est Senatum pro Affirmativa judicasse secundum actorem Regis Donatarium Retention QVaeritur In the Cases of Compensation mentioned in the Questions second and third anent Compensation in the Letter C. If at least the Defender may pretend that he should not be in worse case than if the Assignation were not made and therefore ought to have Retention until his Debt be liquidate It is Answered That there is no ground for Retention but the Defender ought to have done Diligence to affect the Debt due to him which he might have done by Inhibition upon the Dependence or by assigning his Action to the effect Arrestment might have been made in his hands of the Debt due by him Cum refundere oportet Ãmpensas meliorationes Jus Retentionis competit quia interest magis per Exceptionem retinere quam per actionem repetere Jus Fluviat p. 779. n. 78. Retours IF the Sheriff-Clerk and Sheriff of the Shire to which the Lands are unite may not give Seasin and will be lyable to answer in capiendo Securitatem for what is contained in the Retour as to both Lands Retoured Duty AN Annualrent of One Hundred Pound Sterling being given out of a Barony for a Sum of Money lent to the Baron upon that Surety to be holden of the Superior Quaeritur If the Barony being of a considerable Rent suppose Nine Thousand Merks per annum and the new extent of the haill Barony being but Twenty Pounds if the Annualrent should be in Non-entry whether the Non-entry should be the full Annualrent upon that pretence that valet seipsum Or if it should be only a proportion of the retoured Duty viz. The fifth part Answer It is thought that it should be only a proportion of the retoured Duty And valet seipsum is only understood when there is no other retoured Duty And in this case it appears there is no other retoured Duty In so far as the whole Barony and Rent being retoured the Annualrent being the fifth part is consequently retoured And it were absurd that for the Non-entry of an Annualrent there should be more due than for the whole Barony Specially seing the Superior wants not a Vassal of the Barony to serve him for the whole Barony and the Annualrenter is not properly a Vassal obliged to serve being infeft only for surety of his Money Return of Lands to the Superior upon a Provision IF there should be any Difference betwixt Vltimus Haeres and the King succeeding upon a Provision of Return FailÈieing Heirs male Ratio Dubitandi An ultimus Haeres and the Donatar is lyable to Debts but in the other Case it is doubtful Because it is a Maxim that when ever Lands are returned to the Superior either ad Remanentiam or ad Tempus as in the Case of Forefaulture or Recognition or Ward or Non-entry they return pura ut profecta sunt and specially in Ward-lands and where it appears that the Superior elegit familiam and has given Lands with an express Provision of Return it may seem reasonable that seing he has none to serve him in the Family he may have the Lands back in the same condition he did give them Return of Lands to the King failÈiening of Heirs Male THE King having disponed Lands without an Onerous Cause to a Relation or Servant and his Heirs male which FailÈieing to return if the Masculine Line fail Quaeritur Will the King have Right without the Burden of Debts 2do If the Lands be comprised although the King should be free of Personal Debts Will the Compriseing though expired be void Quia resoluto Jure dantis resolvitur Jus accipientis Reversion A Reversion being granted failÈiening Heirs of the Granters Body may the Granter dispone as absolute Fiar Will his Wife have a Liferent by the Contract of Marriage Will she have a Terce So that the Effect of Reversion will be only
persequemur primum secundum facile concidunt sicut enim non refert quomodo aut qua occasione usufructus finiatur sive per se morte usufructuarii naturali vel civili maxima media capitis diminutionibus an per accidens cessione proprietatis consolidatione Inst de usufructu Sed quomodocunque finitus ad proprietatem revertitur ita feudum Jure Vasalli quomodocunque extincto sive naturaliter ut in priori recognitionis specie sive ex commisso ad Dominum redit primaevam suam naturam recuperat nec obstat posterior pars secundi argumenti quae consolidationem fundorum dominantis subalterni in casu concursus in eodem supposito non necessariam esse concludit quia vera est tantum in casu transmissionis quae fit jure extraneo heterogeneo ex titulo emptionis legati vel successionis si Dominus haeres sit vasalli quo casu feudum transmittitur cum onere a vasallo imposito cum enim feudum sit jus transmissibile quin Dominus haeredibus suis qui forte a successione feudi dominantis tallia aut alia provisione arcentur consulere potest feudo acquisito citra consolidationem ad ipsos transmittendo dubium non est atque haec in feudo Emphyteusi qui sunt usufructus perpetui recepta sunt contra Juris Dispositionem de temporali usufructu qui nec cedi nec transmitti potest L. si usuructus ff de Jure dotium Inst de usufructu quae tamen illaesa illabefacta manet in casu extinctionis commissionis qui necessario consolidattonem in pristinum statum sine onere redintegrationem implicat Ad postremum respondetur cum Subfeudorum consolidatio luculenter demonstrata sit subfeuda Domanio seu proprietati annexa consolidata ipsius naturam qualitates inalienabilitatem assumere doctorum qui contrarium tenent authoritatem quia ratione non fulcitur authenticam non esse Et haec est Juris civilis dispositio juxta L. inter socerum ff de pacto dotali sed praxis quae plerumque a Jure recedit hic in Gallia adversatur Rex subfeuda etiam domanio annexo subalternata alienare potest nec requiritur dissolutio Ratio praxeos hujus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 haec obtenditur quod cum annexatio sit stricti Juris odiosa utpote quae absolutam ut leges ipsae loquuntur legibus solutam Principalis potestatis plenitutudinem coarctat nullam extensionem patitur ideoque ea tantum quae expresse annexa sunt Domanii annexi Jure censentur non antem obventiones quantumvis haereditariae accessiones In Gallia certe luculenta Caroli novi constitutio definit nil Domanio annexo comprehendi nisi quod expresse diserte consecratum coronae incorporatum est vel saltem per decem annos ab iis quia rationibus Regiis sunt Domanio annexo accensitum est dispar tamen ratio est in Gallia apud nos ibi enim feuda a genuina feudorum puritate disciverunt tantum non Alaudiorum Patrimonalium Jure censentur proinde ad Dominum cum onere commissa revertuntur apud nos vero tantum abest ut stricta illa feudalitatis tyrannis quae rei suae dispositionem annihilet emolliatur ut contra intendatur adeo ut vasallus Domino inconsulto ne finium regundorum experiri posset nedum de feudo transigere quod tamen Jure feudali licet tit 23. lib. 4. de feudis Et feudum rescissum proditur ob deteriorationem sylvarum stragem cujus praxin refert doctiss Cragius inter Davidem Boner de Rossye Joannem Chrichton de Ennernythie Concludo feuda subalterna ab antiqui seu haereditarii feudi Domino recognita haereditati non conquestibus accenseri feudo Dominanti consolidari Succesor Titulo lucrativo IF the Heir of a Successor titulo lucrativo be lyable as himself to the whole Debt contracted before though exceeding the value of the Estate disponed Ratio Dubitandi The Title of Successor is a penal and passive title and paena non transit in Haeredem 2 do The Heir of an Intrometter was found only lyable in quantum the intrometter was Locupletior in the case of in Lauder And on the other part a Successor Titulo praedicto is haeres per praeceptionem haeres quasi contrahit So that he is not lyable ex Delicto but ex quasi Contractu 2 do The Intrometter is lyable ex culpa For a Stranger may be Intrometter culpa est immiscere se rei ad se non pertinenti If a Defunct should Resign Lands formerly tailÈied and infeft his only Daughter in Fee Will she be lyable as Successor titulo Lucrativo Vide Intrometter Quaestiones 1 2. in Litera I. If he should infeft in Fee his Appearand Heir of TailÈie having a Daughter who succeedeth to him in his other Estate Will the Heir male be lyable as Successor titulo Lucrativo Quaeritur If an Heir male being to succeed by a Right of TailÈie getting a Right of a part of the said Lands will be Successor titulo Lucrativo Ratio Dubitandi The Heir male is not proprie haeres being only a collateral and there being an Heir of Line If an appeirand Heir get a Right only of a Liferent of Lands whereunto he was to succeed will he be Lyable as Successor titulo Lucrativo A person being Lyable to Creditors and then having put his Appearand Heir in Fee of his Estate and thereafter being forefaulted Quaeritur If after his decease his Appearand Heir will be lyable titulo Lucrativo Ratio Dubitandi A Person forefaulted is nullus and cannot be represented A Tutor or Factor having accepted the office and Administration and thereafter having put his Son in the Fee of his Estate before he can be charged with any Malversation Quaeritur If his Son will be lyable titulo Lucrativo for any malversation after his Fee Answer It is thought he will be lyable seeing the accepting the office and obligement ex quasi Contractu is before the Fee A Father having given his Daughter an Estate in Land or otherwise in Tocher to her Husband and reserving his oun Liferent would she be thought to be Successor Titulo Lucrativo if she be his Appearand Heir Ratio Dubitandi It is given to the Husband and not titulo Lucrativo In respect the Husband has Right by a Contract and in contemplation of Onera Matrimonii and the Ioynture he gives his Wife If at least the Tocher in so far as it is immodica may be questioned and retrenched in favours of Creditors A Merchant in Edinburgh having married a third wife and by Contract of Marriage being obliged to employ Twenty two thousand merks upon a Right of Lands or Annualrent to himself and his Spouse in Liferent and conjunct Fee and to the Heirs of the Marrage which FailÈieing
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
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
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
exceeding 200. merks the Jaylor might enlarge Prisoners for debt without any other Warrand but the consent of the Parties at whose instance they were imprisoned which they did upon that consideration that Poor People if they should be forced to suspend and relax with a Warrand to put them out would be sometime put to more Charges than the Debt doth amount to Five of the Lords did dissent being of the Opinion That the Prison being His Majesties Prison no person could be put in upon Letters of Caption unless the same were under the Signet and no person put in by Warrand of the said Letters could be enlarged without Letters to that effect nam unumquodque dissolvitur eo modo quo contrahitur And the Prisoner being put in for his Rebellion could not be enlarged unless he were relaxed And if Parties did suffer themselves to be taken and incarcerat for small Sums it was their own fault and more unexcusable the less the Sum be and majus minus non variant speciem And it being acknowledged by the Law they being Prisoners for greater Sums they could not be enlarged without a Warrand to put them to liberty and the Law making no distinction of greater and less Sums the Lords had not a Legislative Power to alter or qualifie the same without an Act of Parliament D. 239. Burnet contra Lutgrue eod die A Commission being directed for taking the Oath of a Stranger residing in Holland the Report was questioned upon that pretence that the Strangers Deposition was not subscribed albeit the Commission did bear that he should subscribe the same and yet it was sustained because of the Custom of Holland that the Judges only subscribe and the same was subscribed by them And it was adminiculate with a Letter from him bearing that he had declared before the Commissioners and that he would adhere to what he had declared Gibson Clerk D. 240. Marion Binnie contra Gilbert Scot eod die THE deceast William Scot of Bonington having three Sons William the eldest and Robert and Gilbert The said William by his Contract of Marriage had the Lands and Estate of Bonington disponed to him by his Father Mr. James Scot but was not infeft therein and after his decease his Brother Robert having succeeded to him did renew a Bond granted by the said William in favours of Robert Riddel and having retired the said William's Bond did grant a new Bond for the Sum therein contained And the said Robert having also deceased before he was infeft in the Estate or served Heir to the said William and the said Gilbert the third Son having succeeded a Pursute was intented at the instance of the Relict and Executrix of the Creditor against the said Gilbert as representing the said William and Robert his Brothers at least to hear and see it found and declared that the said Bond granted by Robert was granted by him in contemplation and lieu of the said William's Debt and Bond and that it ought to affect any Estate that did belong to the said William and in special the benefite of the said Contract of Marriage and disposition therein made in favours of the said William It was Alledged for the Defender That he did not Represent Robert nor William upon any Passive Titles and tho he should represent William neither he nor the Estate would be Lyable to the said Debt In respect the samen was extinct and innovate by a new Bond granted by the said Robert whom neither he did nor would Represent And the said Bond being granted only by Robert could not affect any thing belonging to William and he was not concerned to debate upon what account the said Bond was given by Robert The Lords did encline to sustain the Declarator upon that head that the said Innovation was only to the effect the Creditor might be the better secured and satisfied the said Robert being Appearand Heir for the time and who if he had lived would have perfited his Right and obtained himself served Heir to William but being prevented by Death so that the said Bond was altogether ineffectual the Pursuer had condictionem causa data causa non secuta to be Reponed against the said Innovation and the Defender was in dolo pessimo to question the same seing nemo debet locupletari cum aliena jactura And he ought not to have William's Estate without payment of his Debt And some of the Lords did urge and instance the case aftermentioned viz. If the Younger of two Brothers the Elder having gone Abroad and thought to be dead should obtain himself served as Heir to his Father and the Creditors of the Father conceiving that he had Right should renew their Bonds and give back these that they had from the Father and thereafter the Elder Brother should return and should be served Heir to his Father whether in that case the Creditors might have Action against the Elder Brother and Estate notwithstanding of the said Innovation But because the case was New and not without Difficulty The Lords before Answer thought fit to try what way it could be made appear that the said Bond was in lieu of a Bond granted by William Newbyth Reporter Gibson Clerk D. 241. Broun contra Ogilvie eod die A Person being pursued for an Annuity of Money did claim the benefite of Retention conform to the late Act of Parliament But the Lords Found that albeit Retention was granted for relief of Debitors of their Taxation and that the Debitor was alike concerned as to the end foresaid whether he payed the Annualrent as the usura and profite of a principal Sum or as Annuity due upon a personal Bond yet the Act of Parliament mentioned only Annualrents And being as all Acts of Parliament stricti Juris specially such as are correctoriae Juris communis it could not be extended beyond the Letter of the Law Nevoy Reporter Gibson Clerk D. 242. Collonel Fulertoun contra The Laird of Boyne eod die THE deceast Laird of Towie having named his Relict now Lady Boyne Tutrix to his Daughter and in case of her Marriage Collonel Fulertoun The said Collonel pursued the Laird of Boyne for delivery of the said Pupil It was Alledged That her Mother and her Husband would entertain the Pupil gratis It was Answered That Boyne being her Step Father and having no other Relation but that of Vitricus which in Law is not favoured his offer to entertain is not Relevant against the Tutor who has the Trust both of the Pupils person and Estate And it is to be presumed that the offer of the Step-Father is upon a design upon the Pupill her Person and Fortune and that the case had been determined in terminis 4. July 1649. Langshaw contra Mure. The Lords Repelled the Defence and Ordained the Pupil to be delivered to the Tutor Strathurd Reporter Gibson Clerk D. 243. _____ contra _____ eod die THE Lords Found That a Warrand could not be given to cite at the Mercat
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
well if not more to a Personal Faculty than to an Heretable Fee 2. The said Clause is conceived per verba maxime personalia viz. That the half of the Conquest should be disposed by her and if she should think fit which are verba arbitrii facultatis 3. In dubiis minimum is to be understood solitum ut evitetur absurdum And Respect is to be had to the quality of the Person And albeit mean Persons in their Contracts of Marriage do sometimes provide that the Longest liver may have all It is not usual nor can be instanced that ever in a Contract of Persons of quality a Fee was provided to a Wife It being the great design of the Marriage of such Persons to raise a Family to the Husband and it being very ordinary that a personal Faculty should be given to the Wife 4. If the Contract had been extended it might and ought to have been extended in these Terms That the Lady should Liferent the haill Conquest and in case of no Issue she should have the Personal Faculty foresaid And tho the Conquest had been provided to the Husband and her and the Longest liver of them two and the Heirs of the Marriage whilks faiÈieing the one half to his Heirs and the other to hers her Husband would have been Fiar and in the case foresaid her Heirs would have been Heirs of Provision to him as to the half of the Conquest Actores Sinclair Bernie c. alteri Lockheart c. D. 365. Doctor Wallace contra Symson June 1676. A Bill of Exchange being drawn by a Merchant in Edinburgh upon his Correspondent at London payable to a Merchant at Bristol the person to whom the said Bill was payable was not in England for the time but had gone to Ireland but his Freind having broken up the Letter direct to him and having Found enclosed the said Bill of Exchange did indorse the same to be payed to another person upon the place who did accordingly present the said Bill to the Merchant on whom it was drawn who did accept the same conditionally when it should be right indorsed And thereafter the person to whom the said Bill was payable having duely indorsed the same to be payed as the Indorsation did bear The Mercant upon whom the said Bill was drawn did in the interim break before the Bill swa Indorsed was presented to him There having interveened betwixt the date of the Bill which was 2 d. January and the Right Indorsement of the same which was about the end of April about 4. Moneths So that the Question was whether the Drawer of the said Bill should be Lyable to Refound the Sum thereincontained It was Alledged That he could not be Lyable In respect the said Bill was not returned to him protested either for not Acceptance or for not Payment And albeit in Law and by the custom of Merchants the Drawer be Lyable unless the Bill be payed yet that is ever understood with a Proviso that Diligence should be done and Protests should be taken unless the Person upon whom the Bill had been drawen had been evidently non solvent the time of drawing the said Bill which could not be Alledged in this case seing the Defender had drawen upon the same person after the said Bill to the value of 2000 lib. sterling which had been Answered And had likewayes Answered Bills of his of great value whereas if the Bill in Question had been returned Protested he would have retained the Provision he had in his Hand or done Diligence to recover the value of the said Bill or might have countermanded the said Bill and given an other Bill payable to a person that was upon the place The Lords notwithstanding Found That the Defender and Drawer of the said Bill should be Lyable But some of the Lords were of another Judgement And the Defender Repined and gave in a Bill desiring to be Heard D. 366. _____ contra _____ 4. July 676. IN a Suspension against an Assigney upon a Reason of Compensation viz. That the Suspender had Right to the equivalent Sum due by the Cedent by an Assignation prior to the Assignation granted by the Cedent to the Charger It was Answered That the Assignation granted to the Charger was intimate before the Intimation of the Assignation granted to the Suspender Whereunto It was Replyed That ipso momento that the Suspender got the Assignation foresaid being thereby Creditor to the Cedent he had a Ground of Compensation against the Cedent and consequently against the Charger as Assigney And an Assignation without Intimation is a sufficient Right and Ground of Compensation unless there were an other Assigney to the same Sum competing upon that Ground that he had a better Right by an Assignation intimate The Lords notwithstanding did not allow Compensation and Found the Letters orderly proceeded Newbyth Reporter Mr. Thomas Hay Clerk D. 367. Buchanan contra Logie eod die THE Lords Found That a person out of the Country being cited at the Mercat-Cross of Edinburgh and Pear and Shoar of Leith upon 60. Dayes warning to be holden as confest tho he was not cited personally and that the Decreet could not be questioned upon that Ground as Null But if he were Living and desired to be reponed to his Oath there might be Ground to Repone him Newbyth Reporter Mr. John Hay Clerk D. 368. Lesly contra Fletcher 5. July 1676. SIR John Fletcher being obliged by Contract of Marriage to provide Dam Marion Lesly his Wife of a second Marriage to the Liferent of a Sum of 10000 lib. did thereafter Infeft her in the Lands of Gilchristoun being of more value and of a greater Rent Whereupon she having obtained a Decreet against the Tennents The Lords Found her Right being granted stante Matrimonio and thereafter revocked Null In swa far as it exceeded the Provision in her Contract of Marriage And sustained her Decreet only effeirand thereto and ordained her to be Lyable for the superplus until the said Sum of 10000 lib. should be employed for her Liferent conform to her Contract of Marriage Forret Reporter Mr. Thomas Hay Clerk D. 369. Cheisly contra Edgar of Wadderly eod die EDgar of Wadderly being Charged upon an Indenture betwixt him and Samuel Chiesly Chirurgeon for payment of the Sum thereincontained for his Brothers Prentice-fee and Entertainment dureing his Prentice-ship And having Suspended the said Bond and intented a Reduction thereof upon Minority and Lesion The Lords Found That the Second Brother having no other Means nor Provision his Eldest Brother who was Heir to his Father and had the Estate ought to Entertain him and to put him to a Calling And did not sustain the Reason of Lesion Forret Reporter Gibson Clerk D. 370. Pitrichie contra Geight eod die SIR Richard Maitland of Pitrichie having obtained a Gift of Recognition of the Estate of Geight There was thereafter a Minute betwixt him and his Father and the Laird of Geight
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
should desire his Superior to offer him a Person that he might marry or to consent that he should marry such a Person as he thought fit for him and the Superior should refuse both it were hard that notwithstanding the Vassal should be lyable to pay the Avail of his marriage The Lords nevertheless Found That the single Avail of Marriage is not penal Actores Lockheart and Hamilton alteri Cuningham Mr. John Hay Clerk In praesentia Vide infra 23. January 1677. inter eosdem D. 416. Mitchelson contra Mitchelson 4. January 1677. A Younger Brother being served before the Baillies of Kirkcaldie Heir of Line to the immediate elder Brother Thereafter the eldest Brother did desire to be served Heir of Conquest to the same Person and the Baillies not being clear to proceed in respect of the former Service unless it had been reduced The Lords Thought That upon their Refusal the Elder Brother may Advocate for Iniquity and that the Brieves may be served before the Macers and that the Eldest Brother being wronged by the foresaid Service to which he was not called so that it was res inter alios acta he ought not to be prejudged thereby nor put to the trouble and Charges of a Reduction Gibson Clerk D. 417. Earl of Glencairn contra Brisbains 5. January 1677. FRancis Freeland of that Ilk having disponed to John Mcknair and Robert Hamilton irredeemably and they thereafter having disponed the same with consent of the said Francis to John Brisbain And the said John having granted a Reversion to the said Francis his Heirs of his own Body allanerly for payment of the Sum of 8000 merks and what farder Sums should be debursed for improving the Lands building or repairing the Houses with Annualrent frae the Debursements upon the said John Freeland his own Declaration and that after the first Term after the said Francis his decease The Earl of Glencairn Creditor to the said Francis Freeland alledging that the said Reversion was granted by Fraud and Contryvance and in prejudice of him and Lawful Creditors and that the said Reversion was granted in manner foresaid not in favours of his Debitor but his Heirs for eludeing their Execution Pursued a Reduction of the said Disposition made in favours of Hamilton and Mcnaire and a Declarator that Brisbaines Right should fall in consequence and that it should be lawful to him to comprise the said Reversion and to use an Order as if it had been granted to the said Francis Freeland himself The Lords Thought That if the Price were not adequate which was to be tryed the Conclusions foresaid should be sustained Thesaurer-depute Reporter Gibson Clerk D. 418. Creditors of Mouswel contra The Lady and Children 6. January 1677. JAmes Douglas of Mouswel by Contract of Marriage betwixt his Eldest Son James Douglas and _____ Lawrie did dispone to his Son the Fee of his Estate reserving his own Liferent and with a Provision to be contained in the Infeftment That it should be lawful to him to take on and burden the Estate with the Sum of 18000 merks for the Provision of his other Children and for doing his other Affairs And accordingly the said James did provide to eight Children 9000. merks out of the said Estate by a Bond granted within a year after the said Marriage and Infeftment thereupon Both the Father and the Son the Fiar being deceased and the Son having left only one Son of the Marriage an Infant there followed a Contract â—etwixt Agnes Rome Grandmother to the Child and Janet Lawrie the Mother and certain Friends of the Family whereby it was agreed that the Grandmother should quite 200 merks of her Liferent yearly and the Mother 400 merks of her Liferent and that the Grandmother should Confirm her Husbands Testament for payment of his Debts and for the superplus of the Debt the Friends should undertake the same and upon payment having taken Right thereto should superceed personal Execution until the Child were major the Annualrents being in the mean time payed by the Grandmother as Tutrix to her Grandchild The Grandchild having deceased while he was yet Infant both the Creditors and the Friends and the Relict did take a course to affect the Estate by Comprysings and upon their Infeftments and Rights having pursued the Tennents so that they were forced to raise a multiple Poinding It was Alledged for the Creditors That the Grandmother her Liferent ought to be restricted conform to the said Contract whereby she had discharged the said 200. merks yearly Whereunto It being Answered That res devenerat in alium casum and that the said Restriction was in favours of her Grandchild and for the standing of the Family and in contemplation of the Undertaking and Obligement foresaid of the Friends which they had not done and cessante causa cessat effectus and the Estate being altogether ruined she ought to be in her own place And albeit it was thereto Replyed by the Creditors That whatever might be pretended to be the impulsive Cause yet the said Restriction being once granted doth continue notwithstanding of the pretence foresaid seing there is no resolutive Clause or Provision that the Case above-mentioned falling out the Grand-mother should be in her own place but on the contrare it appears by the Contract that the Death of the Child was then under her consideration In respect it is provided expresly that if the Child should die the Restriction of the Mothers Life-rent should cease and she should be in her own place and so the Provision foresaid being only in favours of the Mother and not of the Grand-mother Exceptio firmat Regulam in non exceptis It being considered likeways there was not the same reason for the Grand-mother In respect by the decease of the Child the Mothers Interest in the Estate did altogether cease whereas the Heir who did succeed to the Child was the Grand-mothers own Son And as to the pretence that the Friends had not fulfilled their part of the Contract It was Answered that the Contract being in effect in favours of the Family both the Relict and the Creditors were thereby obliged and might yet be urged to fulfil their obligements And tho they should both fail the Family could not be prejudged and that the Freinds accordingly as they were obliged they had taken course with the Debts and tho it was pretended that they had not done it debito tempore the said pretence was of no moment seing no time is limited by the Contract Nevertheless the Lords Reponed the Relict against the said Restriction In the same Cause There being a Competition betwixt some of the Creditors whose Debts were Contracted by the Grand-father Agnes Rom's Husband before his Sons Contract of Marriage and betwixt the Children who were Infeft as said is upon the Bond of Provision granted by their Father conform to the faculty foresaid It was Alledged for the Creditors That they ought to be preferred In respect that upon Bonds of
Corroboration granted by the Son the Fiar they had Comprysed and were Infeft by publick Infeftments at least had charged the Superior So that their Right being publick and for a true Debt anterior to the Childrens Provision they were preferable to the Children their Infeftment being base The Lords Found That the Children should be preferred In respect the Comprysings were against the Son and the Comprysers could be in no better Case than the Son himself whose Right was affected with the said faculty in favours of the Children So that neither he nor any having Right from him could question the Right granted by vertue of and conform to the said Faculty This Decision being by plurality seemed hard to some of the Lords who did consider that the foresaid Faculty was not only in behalf of the Children but of supervenient Creditors if the Father had thereafter Contracted any Debt and if the Father had given surety to the said Supervenient Creditors by base Infeftments and if his Anterior Creditors before the said Contract had comprysed and had been Infeft they would have been preferred to the said posterior Creditors having only base Rights and multo magis to the Children They considered also That the Estate being by the said Contract Disponed simply to the Son with a Reservation only of the Fathers Liferent and the said Faculty and the Son not being obliged to pay the Fathers Debts by the said Contract if there had been 18000 Merks of Debt anterior to the Contract Anterior Creditors might have pursued the Son for the same not only because he was Appearand Heir and Successor Titulo Lucrativo but because he was obliged by the Contract at least his Estate burdened for the said Sum And the Anterior Creditors might either have taken that course or might have Comprysed the Interest competent to the Father by the said Faculty And seing the Son might have been forced in manner foresaid to satisfy the said Creditors he might have granted Bonds of Corroboration whereupon they might have Comprysed and having comprysed and having gotten publick Rights they are preferable to the base Right of the Children In the same Cause The Creditors did alledge that they ought to be preferred to the Children because their Provision was after their Debt and was without an Onerous Cause And nevertheless the Lords Found the Defence for the Children Relevant viz. That their Father the time of the granting of the said Bonâ— for their Provision had a sufficient Estate besides out of which the Creditors might have been satisfied This Decision being also by the Major part seemed hard to others who thought that a Debitor could do no Deed in prejudice of his Creditors without an Onerous Cause And tho the Father might be looked upon the time of the granting of Provisions to Children as in a good condition and therefore the Creditors to be secure and needed not do Diligence yet if thereafter he should become insolvent the loss ought to be upon the Children and not the Creditors And that it being a principle That a Debitor can do nothing in prejudice of his Creditor without an Onerous Cause It is certainly both Fraud and prejudice that he should not pay his Debt but should give away to his Children that part of his Estate which the Creditors might have affected And Inhibitions being only in these terms That the Party Inhibite should do no Deed in defraud of the Creditor It might be pretended by the same Reason in Reductions ex capite Inhibitionis that the Party Inhibite did nothing in defraud or prejudice of the Pursuer In respect the time of the granting the Bond or Right craved to be reduced he had Effects and sufficiency of Estate beside Lockheart c. for Queensberry and other Creditors Cuninghame Anderson and MckenÈie for the Children and Relict Gibson Clerk In praesentia D. 419. Stewart of Castlemilk contra Sir John Whitefoord 10. January 1677. SIR Archibald Stewart of Castlemilk having pursued a Reduction of a Disposition of the Lands of Coats made by James Stewart of Minto in favours of Sir John Whitefoord ex capite metus In swa far as the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time and thereafter having a Caption against him had detained him Prisoner and had caused transport and convey him in that condition from diverse places in the night Season and by his Servants had threatned him with long Imprisonment and in end had prevailed with him to dispone to him the saids Lands being eight Chalders Victual of Rent and where there was a Coal of 100. lib. sterl of Rent upon an Obligement only to pay him an yearly Annuity of 400. merks In which process the said Sir John and Duke Hamilton who had thereafter acquired the said Lands from the said Sir John did compear and propone the Defences following 1. That the foresaid Qualifications of Force were not Relevant to import metus qui potest cadere in Constantem virum being neither mortis nor Cruciatus nor so circumstantiate as is required of the Law for founding the said Action And 2 That albeit metus were relevantly qualified the foresaid Deed cannot be questioned upon pretence of the same unless the said James Stewart had been lesed or damnified by the same Seing it appears by the Title quod metus causa c. A Reduction and Restitution upon that head is not competent ubi non est damnum nihil abest as is clear by diverse Texts in the case of a Creditor useing force to get what is unquestionably due to him and in this case the said James had no prejudice in respect he was obliged by an antecedent Minute to dispon the said Lands so that the said Disposition was but for implement of the said Minute which the said Sir John did give back to be cancelled by Minto when he got the said Disposition And 3. It was offered to be proven that after the said James was at liberty the said Disposition was granted by him The Lords Found That the Libel and Qualifications of metus and Force were relevant and yet in respect the Defenders were so positive as to their Alledgance that the Disponer was at liberty when he granted the said Right they allowed a conjunct Probation concerning the said Qualifications of Force and the condition the Disponer was in for the time and the way of granting the said Right whether he was under Restraint and the Impression of Fear or in Freedom Or whether the samen was granted by him freely and voluntarly As to the said other Defence that there was no damnum the Lords repelled the same and would not allow that point of Fact to be tryed whether or not there were a former Minute for Implement of which the said Right was granted And whether it was given back for and the time of the granting of the said Disposition Some of the Lords were of the Opinion That
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
Crimes committed upon the occasion foresaid but the said pursute being taken away by a Remission there was thereafter a SpuilÈie pursued at the instance of the Master of Rae having Assignation from his Father and by his Tennents whose Goods had been Robbed and taken And it being Alledged against the said Pursute that it was prescrived The Lords sustained the Reply that the Prescription was interrupted by the foresaid Process before the Justices And again this Day a Summonds of SpuilÈie which had been formerly intented being produced and it being Alledged that by the said Summonds and Execution upon the same the Prescription was interrupted The Lords Found That the same did not interrupt In regard it appeared that the Names of the Defenders have been Blank in the saids Summonds and since filled up with another Ink And it appeared by the Executions that the same were at the instance of Gray of Arbo and others mentioned in the Summonds without specifying the said other Persons and the Defenders had settled with and satisfied Arbo So that it appeared that the Names of the said other persons had been filled up in the body of the Summonds of purpose to be a Ground for the said Reply But tho the Lords did not sustain the Process as to the effect of giving the Pursuer Juramentum in litem In regard the Goods Libelled were Libelled to extend as to the number of Good and the Damnage sustained by the Pursuers Cedent to vast Sums exceeding the value of that whole Country yet the Lords did adhere to their former Interloquitor That they would consider the time of the advising the profits of the Goods as in a SpuilÈie It occurred to some of the Lords and was moved whether Juramentum in litem being given to the Party wronged and upon that account that the quantities and the Kinds of Goods taken from him could not be so well known to others and proven if the same be a personal favour Or if it may be extended to an Assigney Newbyth Reporter D. 448. Holmes contra Marshall 2. February 1677. THE Lords Found That a Woman being provided by her Contract of Marriage to a Liferent of the Conquest of Lands or other Goods that should be acquired dureing the Marriage And the question being of Moveables and she having accepted a Third of the same she could not return to crave a Liferent of the other two parts tho it was Alledged by her she had not accepted the same in satisfaction of what she could claim 2. It was Found That a Woman being provided as said is to a Liferent of all the Moveables her Husband had the time he Marryed her and which he should acquire during the Marriage It was in her Option either to take her to her Liferent of the whole or to claim the 3d part in property but making Election could not varie Tho this was Found by plurality yet some of the Lords were of Opinion that by the Provision foresaid she has only a Liferent and that she had not the said Election Seing eo ipso that she is provided to a Liferent of all it is intended and agreed there should be no Communio bonorum It being inconsistent that she should be both Proprietar and Liferentar usufructu formali Newbyth Reporter Gibson Clerk D. 449. _____ contra Tait 6 February 1677. THE Lords Found That a Bond being granted on Death-bed with consent of his Appearand Heir for his Interest bearing an obligement to pay a Sum of Money Is to be considered not as a Legacy but as a Bond inter vivos Seing by the Common Law all persons are in legitima potestate as to the granting of Bonds And our custom whereby persons on Death-bed are not in in liege poustie is qualified with an exception viz. unless the Heir consent in whose favours the same is introduced Castlehill Reporter D. 450. _____ contra _____ eod die THE Lords Found That Appearand Heirs may be pursued as behaving before the year expire seing eo ipso that miscent adeunt passive And as to that pretence that they would be wronged if it should have appeared by the probation that they did not meddle It is of no weight Seing the Lords may modify Expences D. 451. _____ contra _____ 29. February 1677. AN Exhibition being pursued at the instance of an Heir of Conquest And it being Alledged by the Heir of Line that some of the Lands whereof the Writes were craved to be exhibited were in Holland and that by the custom there the Eldest Brother did not succeed as Heir of Conquest but all the Brothers and Sisters equally so that the Writes ought not to be delivered to the Pursuer who had only an Interest as to the fifth part whereas the Defender had four parts having acquired three from his Brothers and Sisters and having one himself and he having the far greater interest in the Land and Writes ought to have the keeping of the same being Lyable to make them forthcoming to the Pursuer The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes In that same Cause It was Alledged That as to the Lands in Scotland the Defuncts Right was only by a Comprysing which was personal and whereupon no Infeftment had followed and which belonged to the Heir of Line as Tacks and Reversions The Lords nevertheless Found that the Heir of Conquest has Right to the same conform to a late Decision D. 452. Purveyance contra Knight 8 June 1677. THE Lords Found Upon the advising of a concluded Cause after Debate in praesentia in the Case in question That Liber Rationum and a Compt-Book of a Merchant containing an Article of Debt due by him to the Pursuer was a sufficient Probation In respect the said Compt-Book was written with the Merchants own Hand and he was known to be a person of great Honesty and Exactness and the Article was so clear that the time therein mentioned he stated himself to be Debitor in the said Sum all by gone Annualrents being payed and in an other part and Article of the said Book he did acknowledge that he had borrowed the said Sum and was special as to the time and there was a great Confidence and near Relation betwixt him and the Creditor and therefore the Lords decided as said is in respect of the said Circumstances but thought it hard that Compt-Books in Scotland where there is not that exactness that is else where in keeping Books should have that Faith that is given to them elsewhere Mr. Robert Stewart Actor alteri Cuningham Mr. John Hay Clerk In praesentia D. 453. Campbel contra Taite eod die THE Lybel being referred to the Defenders Oath and he having declared upon a general Interrogator that he was not owing the Sum acclaimed It was urged the time of the advising of the Oath that the Defender should declare whether or not he had gotten a parcel of Lint and what way he had payed the price of the
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
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls