Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
drayning of this Loch Raith of Edmonstoun Contra the Laird of Niddrie Iuly 4. 1661. JOhn Boid Merchant in Edinburgh as Assigny constitute by the Laird of of Wolmet to a Decreet obtained at his Instance against Niddrie for payment of the sum of 7000. merks for which he gave Band to Wmquhil Wolmet for Iames Reith of Edmonstoun his good brother as an Asythment for the Mutilation of the Laird of Wolmet by Edmonstoun who cut off Wolmets left hand Niddrie Suspended on double Poynding called the said Iohn Boyd Iean Dowglas Umquhile Wolmets Relict and the said Iames Reith It was alledged for Niddrie and the said Iames Reith that the Decreet did bear the sum not to be payable till their were delivered a sufficient Letter of Slaine and Remission for the Mutilation but the Letters of Slain now produced is not sufficient because it did bear only the Remission of an accidental Mutilation and this Mutilation being of purpose 2dly It was only subscribed by Wolmets Heir and not by his Wife and their Children It was answered for the Chargers that there was no necessity of a Letter of Slains for Mutilation but the Remission alone was sufficient 2dly This sum was granted for Asythment to Umquhile Wolmet himself in his Lifetime and the Decreet mentioned a Letter of Slains granted by him 3dly Any Interest his Wife or Bairns could have was only for the Asythment of their Damnage which could be none seeing Wolmet was a Landed Gentleman and did not intertain his Family by his handie work The Lords Repelled the Reason of Suspension In respect of the Answer on the Decreet and Letters of Slain produced which they found Sufficient It was also alledged be the said Iean Dowglas that she ought to be preferred to the said Iohn Boyd because she had arrested the sum long before his Assignation It is answered for Boyd the Arrestment was upon a dependence and loosed and there is yet no Decreet upon the Dependence It is answered for Dowglas That the loosing of the Arrestment would have freed Niddrie if he had actually payed the sum but it being yet in his hand it ought to prefer her as Creditor doing first Diligence especially seing Wolmet the time of the Assignation was Rebel and Bankrupt The Lords preferred the Assigny in respect there was no Decreet Extracted upon the Dependence Reserving to the Arrester after sentence to reduce upon the prior diligence as accords c. Tailizfer Contra Maxtoun and Cuninghame Iuly 6. 1661. IN the Competition betwixt Tailzifer Maxtoun and Cuninghame mentioned Iune 29. Where Tailzifer was preferred to the Stock of the sum consigned for the Redemption of the Wodset in Question It was further alledged for Maxtoun that he ought to have a share of the Stock because he produced a mutual Band betwixt himself and William Clerk Tailzifers Author who apprysed the Wodset whereby they were oblidged to to Communicat the Profit that should accresce to them by their Actions intented and to be intented upon their Rights of Iohn Ker the common Debitors Lands without opposing one another upon their several Apprysings Tailzifer answerd non relevat against him who was a singular Successor this being but a personal Band of his Author and could not affect his Real Right of Apprysing it was answerd for Maxtoun First Albeit Apprysings and Infeftmens thereupon be Real Rights in some respect yet in many others they were only accompted as Personal Rights at least might be taken away by Personal deeds as by Intromission with the Maills and Duties of the Apprized Lands or by payment of the Sums therein contained which would be valid against singular Successors without necessity of any Consignation It was answered for Tailzifer That this is by reason of the Act of Parliament 1621. Declaring Apprysings satisficable by Intromission with the Maills and Duties and so to expire ipso facto but cannot be streached beyond the Tenor of that Statute contrair the nature of Real Rights The Lords repelled the alleadgeance for Maxtoun upon the Band for Communication which did not affect singular Successors It was further alleadgedâ— that this mutual Band was Homolgat by Tailzifer in so far as he had concurred in all pursuits with Maxtoun conform to the Tenor of the said Band and had uplifted the Mails and Duties accordingly It was answered for Tailzifer non relevat to infer Homologation seeing these Deeds are not relative to any such personal Bond which Tailzifer never knew and therefore could not Homologat whereupon Tailzifers oath was taken if he knew the same who denyed And thereupon the alleadgence was repelled Maxtoun farther alleadged that albeit there had been no more but the concurrence judicially it was sufficient to communicat the Appryzings It was answered for Tailzifer non relevat unless the concurrence had born expresly to communicat for the concurrence only to exclude third Parties would never infer the same The Lords Repelled Maxtoun's Alleadgences and adhered to their first Interlocutor Colledge of St. Andrews Supplicant Iuly 16. 1661. THE Colledge of St. Andrews Supplicat that in respect their hail Rents were arrested at the Instance of Doctor Gleig and thereby they were not able to intertain their Table and Bursers craved the arrestment to be loosed without Caution in respect they were an Incorporation for whom no body would be Caution The Lords after debating the Case amongst themselves whether arrestment could be loosed without Caution or upon juratorie cautione thought it could not but in this case they allowed the same to be loosed the Masters of the Colledges giving a Bond to bind themselves and their Heirs personally for what should be uplifted by any of them whereby every Person stood Caution for his own Intromission for the University they not being otherwayes bound personaliter but only secundum officium Relict of Robert Fleming contra Forresters Iuly 17. 1661. THE Relict of Robert Fleming Bailzie of Edinburgh as his Executrix Charged Forresters the Bailzies Sister Daughters to pay 1600. merks due by their Father by Bond and decerned against them as lawfully Charged to enter Heirs to him nineteen years ago and now eiked to the Bailzies Testament by the Charger whereupon She obtained Letters of Horning Summarly the Suspenders alleadged the Letters ought to be Suspended simpliciter because they offered a Renounciation to be Heirs The Charger answered non relevat post sententiam et tantum temporis Intervallum The Suspender replyed they were Minors the time of the Decreet and that the delay of time was because their Uncle never Insisted and it was like purposed not to Insist The Charger answered they were now Majors and did not reduce intra annos utiles The Lords admitted the Renunciation Laird of Buchannan contra Oseburn Iuly 24. 1661. THE Laird of Buchannan Pursues Reduction of a Decreet obtained against him at the Instance of Lieutennent Collonel Oseburn in Anno 1653. upon many Reasons mainly because the ground of the Decreet was only a Bill not past the
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
satisfying of these and in so far the Corns were not their own and so they could pay for no more Corns then their own neither could they be lyable for dry Multure unless it were Constitute by Writ especially seeing the Charger Libels not upon the Defenders Infeftment or Bonds of Thirlage but upon his own Infeftment only generally as Infeft in the Miln of the Barony The Lords Repelled these Alleadgences and Sustained the Decreet for all the Corns except Seed Horse-corn and Teind which tholled not Fire and Water within the Thirle Nicol Harper contra Hoom of Plandergaist Eodem die NIcol Harper pursues Collonel Iohn Hoom of Plandergaist for payment of a Debt of umquhil Hoom of Plandergaist his Brother and condescends that the Defender hath behaved himself as Heir at least Successor Lucrative to his Brother in so far as his Brother Disponed the Lands of Plandergaist to William Hoom of Linthil to the behove of the Defender then his appearand Heir whereupon the Defender is now in possession The Defender alâ—eadged non relevat to infer this passive Title unless the Disposition had been to the Defender himself or that he had thereupon been Infeft but a third Party being only in the real Right and the Defunct denuded before his death albeit there was a personal obliegment of Trust in Favours of the appearand Heir if that cannot make him Lucrative Successour but the Pursuer may reduce the same if it was without Cause onerous The Lords found the Defence relevant to Liberat the Defender from this passive Title but would not put the Pursuer to Reduction but admitted it by Reply ad hunc effectum that the Defender should be countable according to his Intromission and that the Pursuer as a lawful Creditor should be preferred upon his legal Diligence to the said Disposition But the question arising whether the Disposition if in trust was Lucrative or not and what to be Lucrative imported whether without any price or within the half or third of the just price The Lords before answer ordained the Disposition to be produced and such Adminâ—â—les for instructing of the â—nerous Cause as the Defender would make use of reserving to themselves what the samine should work Robert Dickie contra Theoder Montgomery Eodem die RObert Dickie as Assigney Constitute by Robert Montgomery to a Contract betwixt Theoder Montgomerie and the said Robert Charges Theoder to pay 700. merks He Suspends on this Reason that the Debt was Discharged before the Assignation or Intimation conform to the Discharge produced The Charger answered that the Discharge is null as wanting Witnesses The Suspender replyed he offered him to prove Holograph The Charger answered non relevat against him a singular Successor especially the question being of the Date For if Writs proven Holograph could instruct their own Date no Assigney or any other person using legal Diligence by Arrestment Appryzing or otherwise could be secure But that their Cedents and Authors might evacuat the Right by Discharges or Renunciatioâ— Holograph And therefore seeing by express Act of Parliamenâ— Writs wanting Witnesses are declared null The Exception introduced by Custom of Holographon ought not to be extended especially in relation to the Debitor against singular Successors The Suspender alleadged the inconvenience was alâ— great on the other hand it being ordinar for Masters to give their Tennents Holograph Discharges and whatever favour necessar Assignations by legal Diligence might have yet this is a voluntar Assignationâ— The Lords repelled the Reason of Suspension and Reply in respect of the answer and duplâ— and found the Holograph Discharge not to prove its own date against the Assigney unless the Suspender could instruct it by other Adminicles George Grant contra Grant of Kirdels Ianuary 15. 1662. GEorge Grant pursues Reduction of a Renunciation of a Wodset made by Grant of Morinsh to Grant of Kirdels ex capite inhibitionis because he had Inhibit Morinsh the Wodsetter before he granted the Renunciation The Defender alleadged that he had a Reduction of the Bond whereupon the Pursuers Inhibition was raised depending and declared he held the production satisfied and repeated his Reason by way of Defense that the Bond was null wanting a Date either of Day Month or Year The Pursuer answered that the Bond bare the Term of payment to be Whitsunday 1635. and so instructs that the Bond was betwixt Whitsonday 1634. and Whitsonday 1635. The Defender answered non relevat unless the Month and Day were also exprest because otherwise the means of Improbation cease by proving alibi The Lords Repelled this Defense seing the Year was exprest in re antiqua but if Improbation had been insisted on less Reasons in the indirect manner would be sustained The Defender alleadged further Absolvitor because this Bond albeit it be assigned to George Grant the Pursuer yet it is offered to be proven that the time of the Assignation the said George was Pupil within twelve years of age in his Fathers Family And so in Law it is presumed that it was acquired by his Fathers Means and is all one as if his Father had taken Assignation in his own Name and granted translation to his Son And it is clear by the Testament produced that grant of Ballandallochs Father was Tutor to the Wodsetter and during his Tutory any Right taken by him of sums due by the Pupil are presumed to be satisfied by the Pupils Means and to accresce to the Pupil against whom he nor his Assigney can have no Action for any particular apart but the whole must come in in the Tutors accounts and offers to prove if need beis that the Tutor intâ—s habâ—â—t being Debitor in greater sums to the Pupil then this The Pursuer answered First the Alleadgence is no way relevant upon such presumptions to take away the Right standing in the Defenders Person Secondly The Defense is not liquid and so can make no compensation albeit his Son were expresly Assigney as he is not The Lords found the Defense Relevant unless the Pursuer would condescend and instruct that the Assignation was granted to him otherwise then by his Fathers Means Thomas Fairholme contra Margaret Bisset Ianuary 18. 1662. THomas Fairholm as Executor Creditor Confirmed to Andrew Reid pursues Margaret Bisset his Relict to deliver the Ware in his Chop contained in the Pursuers Confirmation The Defender alleadged Absolvitor because she has Confirmed the Ware in the Shop specially and particularly for the use of the hail Creditors and the Pursuers Confirmation is only general not condescending upon the particular Ware And though the Defenders Confirmation be posterior yet it is special and hath attained Possession before any Pursuit at the Pursuers instance upon his prior Confirmation and Confirmations do not establish Property until Possession or Execution but is only as a legal Disposition incompleat as Gifts of Escheat where the first Sentence or Possession gives the first real Right of Property The Pursuer answered that his Confirmation
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
he expresly renunced the benefit of the Usurpers Act betwixt Debitor and Creditor and all such Acts made or to be made and oblidged himself upon Honour and Conscience not to prejudge Sir John of his bargain to which no subsequent Law could derogat unless it had been specially notwithstanding any such Paction Secondly The foresaid Act has an express exception That where such Acts made and to be made are Renounced the benefit of that Act shall not be competent to such The Pursuer Answerd to the first That Pactions or Renunciation of Parties cannot operat against a posterior Law Secondly The persuâ—t here is for restricting of a Wodset to the true Annualrent for all that was done in the Usurpers Act was to take Land in satisfaction and to delay payment but this Clause of the Act is nothing such and so is Casus Incogitatus which could not be held to be Renunced unless it had been exprest as to the exception in the Act it is not an Exception general to the whole Act but to the Antecedent part of the Act and this Clause anent Restricting of Wodsets is posterior to the Exception and not derogat thereby The Lords Repelled the Defense in respect of the Reply and found the Exception not to Derogat to the Posterior Clause concerning Wodsets Lord Burly contra Iohn Sime Ianuary 30. 1662. THE Lord Burly pursues Iohn Sime for intruding himself in a Coal-heugh wherein the Pursuers Author was infeft severally and not in the Land but only in the Coal with power to set down Pits through all the bounds of the Land The Defender alleadged absolvitor because he stood Infeft in the Lands lybelled with Parts and Pertinents and be vertue thereof was seven Years in Possession which must Defend him in Possession until his Right be reduced The Pursuer answered that the Defender could have no benefite of a possessory Judgement not being expresly Infeft with the benefite of the Coal in prejudice of the Pursuer who was expresly Infeft and Seased in the Coal and in possession of the Coals past memory The Defender answered there was no necessity of an express Infeftment of the Coal which is carried as part and pertinent as Craig observes in dieg de investituturis impropriis to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth and so being Infeft and in possession seven years he has the benefite of a possessory Judgement The Lords found the Defense Relevant but Repelled the same in respect of Interruption within seven years which was proponed Halbert Irwing contra Mckartney Eodem die HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleadged Absolvitor because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson to whom the Pursuer had given a Disposition of all his moveable Goods for relief of a Cautionry for which Mr. Robert first and now this Defender is Distrest Secondly He offers him to prove voluntar Delivery of the Oxen by the Pursuer to him for the cause foresaid But because the Pursuer hath summoned several other persons as Complices which are necessary Witnesses of purpose that he might exclude them from being Witnesses he desires they may be admitted Witnesses or otherwise Discust First that if they be Assoilzied they may be Witnesses The Pursuer answered to the first non relevat a Disposition unless there had been Delivery and albeit there had been an Instrument of Delivery yet it being dispositio omnium bonorum two years before the medling could be no Warrant for summar medling without Sentence of a Judge and gave only jus ad rem But specially the medling with the Plough Goods in time of Labourage when the Pursuer put other Goods before the Defender The Lords found the first Defense Relevant founded upon the general Disposition and Instrument of Possession and that the Disposition alone though without any possession had been sufficient against the Disponer ad vitandum spolium unless the Defender had Intrometted by violence being resisted by force But they proceeded not to the second Defense which doubtless was Relevant and the desire reasonable of Discussing the remnant Defenders First that they might be Witnesses if Assoilzied Yea it seems they could not be hindred to be Witnesses used for the Defender though they might be suspect Witnesses against him as being Interest to put the Spuilzie upon him for their own relief Sir Iames Cunninghame contra Thomas Dalmahoy February 1. 1662. SIr Iames Cunninghame pursues Thomas Dalmahoy and the Tennents of Pollomount to make payment to him of the Mails and Duties of the Lands of Pollomount resting at the Death of the late Dutches of Hamiltoun because she had granted Bond of 500. pound Sterling to the Pursuer to be payed after her Death and for security thereof had assigned the Mails and Duties of her Liferent Lands of Pollomount which should happen to be due at the time of her Death It was alleadged for Thomas Dalmahoy her second Husband Absolvitor because these Mails and Duties belonged to him jure mariti neither can he be lyable for this Debt jure mariti because it was not Established against him during the Ladies Life neither could be because the term of payment was after her Death The Pursuer answered that he did not insist against Thomas Dalmahoy as Husband but as Intrometter with the Rents of Pollomount due at the Dutches Death wherewith he hath medled since which could not belong to him jure mariti being assigned before the Marriage and if they could belong to him jure mariti yet it must be with the burding of this Debt The Lords Repelled the Defense in respect of the Reply for they thought a Husband albeit he was not lyable simply for his Wifes Debt post solutum matrimonij yet that he should have no more of the Wifes Means jure mariti but what was free of Debt and so behoved to pay her Debt so far as he enjoyed of her Means Belshes contra Belshes Eodem die IN an Account and Reckoning betwixt Belshes and Belshes concerning Executry The Lords found that the prices given up by the Defunct in his Testament of his own Goods should stand and the Executor be accountable accordinglyâ— seing there was no enorm prejudice alleadged as if the Defunct had prized the Goods within a half or third of the true avail to the advantage of the Executor and prejudice of the Wife Bairns or Creditors The Lords did also allow Aliment to the Wife out of her Husbands Moveables to the next Term albeit she Liferented an Annualrent payable at the next Term. Lord Melvil contra Laird of Fairin February 4. 1662. THe Lord Melvil pursues the Laird of Fairin for Warrandice of a Disposition of certain Lands aud Teinds sold to my Lord by him with absolute Warrandice and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleadged Absolvitor because this Distress was
instruct the Protestation The Lords Repelled the Defense in respect of the absence of the Register and the oldness of the Horning Achinbeck contra Mccleud Eodem die IN an Improbation at the Instance of the Laird of Achinbeck against Mccleud The Lords found that the Improbation behoved to be continued albeit the samine had an ordinar priviledge to pass upon six dayes for the first Summonds past of course periculo penitentis Acheson contra Earl of Errol Eodem die ACheson pursues the Earl of Errol as presenting his Father to pay a Debt wherein his Father was Cautioner for the Earl of Mar and for instructing thereof produced the Extract of a Bond Registrate by consent in the Books of Session The Defender alleadged no Processe against him because the Bond was not Registrat by any Procurator for his Father because he was Dead before the Registration and so cannot prove against him neither being a principal Writ Subscribed by his hand nor being a Decreet of Registration by consent of his Procurator nor upon Citation The Pursuer alleadged that it was an authentick Evident and bare expresly Sic subscribitur Errol and seing by Law and Custom the Pursuer was necessitat to leave the Principal at the Register when the Registrat the same and that the Registers are now lost without his fault The Lords refused to sustain the Extract against the Earl of Errol but yet would not put the Party to an Action of proving the Tenor but would receive Adminiâ—les to instruct that Earl was Cautioner and therefore ex officio ordained the other Subscribers of the Bond or any other person that could be adduced for instructing the Truth to be required ex officio Thomas Crawford contra Earl of Murray February 8. 1662. THomas Crawford as Executor Creditor Confirmed to Umquhil Robert Ingâ—is as Assigney by his Relict for satisfaction of her Contract of Marriage pursues the Earl of Murray for payment of the Sums Confirmed addebted by him to the said umquhil Robert The Defender alleadged compensation because he had Assignation to a Debt due by the said umquhil Robert which as it would have been relevant against Robert himself so must it be against his Executor The Pursuer replyed First non relevat unless the Assignation had been Intimat before the Confirmation but an Executor Creditor having done Diligence by Confirmation it is not in the power of any of the Defuncts Debitors by taking Assignation from any of his Creditors to prefer that Creditor to any other Creditor which is no ways legittimus modus preferendi But the Creditors must be preferred only according to their Diligence Secondly This Pursuit being for Implement of the Relicts Contract of Marriage and pursued to their behove hath by our Law and Custome preference to all other personal Creditors though having done more Diligence The Lords found either of these two Replys Relevant to elide the Defense albeit the Assignation was before any Pursuit moved upon the Pursuers Confirmation Lord Torphichan contra Eodem die THe Lord Torphichan and certain of his Feuars pursue a Reduction of a Decreet of the Sheriff whereby he set down Marches betwixt their Lands and others upon this Ground that he did not proceed by an Inquest conform to the Act of Parliament but by Witnesses Secondly That he as Superiour was not Called Thirdly That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters to be proven by Witnesses The Defenders answered the first Reason was not objected and the Defenders Compearance it was competent and omitted To the second the Superour could have no Detriment To the third that the setting down of March-stones being a palpable Fact might be proven by Witnesses whether done by the Parties themselves or by Friends chosen in their presence their being neither Decreet-arbitral nor Submission in Writ The Lords Repelled the Reasons in respect of the Answer and declared that if the Land fell in the Superiours hands by Recognition Non-entry or otherwise The Decreet should not prejudge him if he were not Called Ramsay of Torbanie contra Mcclellane February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension and Reduction of a Decreet against him at the Iâ—stanâ—e of Thomas Mcclellane in Anno 1658. Insists upon this Reason that he being pursued as Heir to his Father at the Instance of Thomas Mcclellane he proponed this Relevant Defense absolvitor because the Bond pursued upon was granted by his Father after he was Interdicted without consent of the Interdictors and so could not affect the Person Interdicted Heir albeit he had succeeded in his Estate The Defender answered that the said alleadgence was justly Repelled in respect of this relevant Reply that the Interdiction hath no effect as to Moveables and Personal Execution neither as to any other Lands then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat conform to the Act of Parliament ita est this Interdiction was published and Registrate only at Linlithgow and therefore if the Defender hath succeeded to any Lands not lying in Linlithgow Shire or if he hath medled with Heirship Moveable or be vitious Intromettor with his Fathers Moveables he is lyable for this Sum albeit after the Interdiction ita est he succeeded to Lands in the Stewartry of Kirkcudburgh and Moveables c. and therefore the Defense was justly Repelled The Lords found the Decreet just and therefore Repelled the Reasons of Suspension and Reduction Bells contra Wilkie February 12. 1662. GRissel and Bells raise a Reduction against Iames Wilkie of a Decreet obtained at his Instance against them in Anno 1659. whereby the said Iames Wilkie being Executor Confirmed to his Mother who was one of the Sisters and Executors of umquhil Patrick Bell their Brother in which Confirmation the said Iames gave up the third of the said Patricks Goods and thereupon obtained Decreet against these Pursuers as the two surviving Executors to pay to the said Iames his Mothers third Part of her Brothers Means The Reason of Reduction was that the Decreet was unjust and contrair to the Law and Custom of this Kingdom whereby there is no right of Representation in Moveables as in Heretage neither doth the Confirmation of the Executors establish in the Executors a compleat Right untill the Testament be execute either by obtaining payment or Decreet and if the Executor die before Execution the Right ceases and is not Transmitted to the Executors Executor but remains in bonis defuncti of the first Defunct and therefore Executors ad non Executa must be confirmed to the first Defunct which being a constant and unquestionable custome one of the three Executors deceasing before Executing the Testament her Right fully ceases and both the Office of Executrie and Benefit accresâ—es to the surviving Sisters as if the deceased Sister had never been Confirmed Executrix The Defender in the Reduction Answered That this Reason was most justly Repelled because albeit it be true
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
his mark it being reasoned amongst the Lords whether this could be accompted a Writ Probative and it being alleadged an Astruction thereof that this Johnstoun being a Merchant and a Drover was accustomed ordinarly so to Subscribe and to give Bills for far greater Sums then this The Lords thought it would be sufficient amongst Merchants though it wanted Witnesses but being unwilling via ordinaria to allow of such a Writ or Subscription for which we have neither Custom nor Decision Yet in respect of the Decreet and of the alleadged Custom so to Subscribe They before answer ordained the Oaths ex officio to be taken of the Writer of the Bill if he could be condescended on by either Party and of the Witnesses who saw Johnstoun Write this mark or receive the Money for which the Bill was granted Creditors of Kinglassie Competings Eodem die IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie It was alleadged for William Hume who had Right to an Annualrent that he ought to be preferred to Joseph Lermont who stood publickly Infeft in the Property in Anno 1655. because albeit the Annualrent of it self was base yet long before it was validat by a Decreet for Poynding of the Ground It was answered that there was no way to make a base Infeftment valide but by Possession here there could be no Possession because the Annualrent was granted to take effect only after the Granters Death and the Decreet thereupon was obtained long before his Death and so could be repute no Possession The Lords were of Opinion that the foresaid Decreet of Poynding of the Ground upon the base Infeftment Ordaining the Ground to be Poynded the Terms of payment being come and bygone was sufficient to validate the base Infeftment and that thereby it remained no more a private Clandestine Infeftment by many other Questions falling in The Matter was laid aside without Decision vide February 27. 1667. Inter eosdem John Kinard contra Laird of Fenzies Eodem die JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie against the Laird of Fenzies who had his Land on the other side thereof alleadging that he and his Predecessors and Authors have been fourty years in Possession of the Myre as proper Part and Pertinent of the Barony of Rossie and that the same is severally kend and known by March and Meith and a Dyke inclosing it from the Defenders Lands It was alleadged for the Defender that he his Predecessors and Authors this fourty years has been in Possession of the said Myre by doing all the Deeds Libelled by the Pursuer which must give them Right at least of common Passurage Fail and Divot therein and therefore craves the Defense to be found Relevant and admitted to his Probation at least that a Cognition might be by an Inquest conform to the Act of Parliament and Witnesses led hinc inde The Pursuer Replyed that he offers him to prove that by the space of fourty years he his Predecessors and Authors Possessed the said Myre not only by the Deeds Libelled but also did divide the same in several Parcels to each Tennent in the Barony and was accordingly Possessed by them which is sufficient to show that they bruiked the same as Property and not a promiscuous Commonty And as for the Defenders Alleadgances of Commonty by common Pasturage c. The same ought to be Repelled because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time which hindered him to Acquire a Right of Commonty by Possession and Prescription and he cannot alleadge that he hath any other Right by express Infeftment and therefore being so much more pregnant then the Defender there ought to be no Cognition but he preferred in Probation The Lords Repelled the Defense in respect of the Libel and Reply but granted Commission to one of their number to Examine Witnesses for the Pursuer omni exceptione majores after which the Defender passing from his Compearance The Lords Declared they would give the Extract of the Interlocutor to the Pursuer and give his Libel and Reply by way of Condescendence and Declaration of the manner of the Property and of his Possession to his Probation Viscount of Stormount contra Heirs of Line and Creditors of the Earl of Annandale Eodem die THE Viscount of Stormont pursues a Declarator against the Heirs of Line of Umquhil James Earl of Annandale and several Creditors of the said Umquhil Earl who had Appryzed the Lordship of Skoon and were Infeft thereupon to hear and see it found and declared that David Viscount of Stormount had Disponed these Lands to Mungo Viscount of Stormount his Brother and the Heirs-male of his Body which failzing to Andrew Lord Balvaird and the Heirs-male of his Body c. with this express provision in the Charter and repeated verbatum in the Seasine that it should not be leisom to the said Mungo or any of the Heirs of Tailzie for the time to alienate the Lands or alter the Tailzie or to do any Deed whereby the same may be evicted or Apprized from the Heirs of Tailzie otherwise their Right should expire and should belong to the next Heir of the Contraveener and that thereby Iames Earl of Annandale last Infeft had contraveened the said Clauses by contracting thir Debts whereupon the Lands were Apprised and thereby had lost his Right and that the saids Creditors Bonds and their Apprizings are thereby null and void and likewise that the said Iames Earl of Annandale his Retour was null and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont as if the said Iames Earl of Annandale had never been Infeft The Defender alleadged First No Proses in this Order without a Reduction without which no Infeftment can be taken away The Lords Repelled this Alleadgence and found that a Declarator was al 's effectual as a Reduction when all was produced that was necessar to be produced before the ground of Nullity were Discussed with which all the rest will fall in consequence and that Reduction was only necessar to force tho Defenders to produce by the Certification but if the Defender would produce himself he might proceed by way of Declarator of Nullity Secondly The Defender alleadged no Processes because by the Co-ception of the Clauses irritant the Rights is declared to belong to the nearest Heir of the Contraveener and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird hath no Interest till he be served Heir-male to Iames Earl of Annandale the Contraveener in which case he cannot quarrel his Deeds or Debts The Pursuer answered that by Heir here cannot be understood the Heir actually served but the Person only that might be Heir for the Pursuer insisted in this same Processes against the Earl of Annandale when he was living and could not have been then excluded because he was not his heir
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ— other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ— found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling upon the ninth of August 1651. by the last of them Kennedy was oblieged to deliver Lambertoun the Bonds for such several Sums he obtaining the Lady Levins consent of all these the Writer and Witnesses were dead and the Date proven to be false In this Process the Lords having considered all the indirect Articles of the Improbation in respect that these Writs in question were never in the alleadged Creditors hands and that there was not one Witness that did Depone that either they remembred to have Subscribed any of these Writs themselves or that they saw either the Parties or any other of the Witnesses Subscribe or any thing communed done or acknowledged by either Party contained in the Writs and that the Subscription of Watson one of the Witnesses in all the Bonds was by comparison with other contraverse Writs about the same time altogether unlike his Subscription and that the Word Witnesses adjoyned to the Subscription of all the VVitnesses did appear to be so like as written with one hand They found sufficient ground to Improve the foresaids writs besides many pregnant presumptions from Kennedies inclination and carriage which being extrinsick were accounted of less value and yet the astructions aforesaid and presumptions on that part were so strong that several of the Lords were unclear simply to find the Bonds false but not authentick probative writs VVilliam VVachope contra Laird of Niddrie Iuly 15. 1662. THe said VVilliam VVachope pursues Niddrie his Brother to pay him eleven pound Sterling for many years which he promised to pay him by a missive Letter produced bearing a Postscript of that nature The Defender alleadged absolvitor First because the Postscript is not Subscribed and so no sufficient Instrument to prove Secondly there is no ground for eleven pound Sterling yearly therein because the words are I have sent you five pound ten shillings Sterling now and I have sent you five pound ten shillings Sterling at VVhitsonday and you shall have as much as long as you live if you carry your self as ye do now which words as long as ye live cannot be understood Termly but yearly nor can relate to both the five pound ten shillings Sterling but only the last to which is adjected Donations being of strick Interpretations Thirdly The words foresaid cannot import a Promise but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother which resolution he may recal at any time Fourthly The Promise is conditional quamdiu se bene gesserit wherefore the Defender can be the only Interpreter and declares that since his Brother hath not carried himself so well the meaning of such words being only this If so long as in my opinion you carry your self so and not according to the opinion of any other The Pursuer to the first Defense opponed the Letter which is holograph and albeit the Postscript be after the Subscription yet seeing it can have no other construction then to be done as a part of the Letter and not as other unsubscribed Papers whereanent it is presumed the VVriter changed his mind and left them imperfect and unsubscribed which cannot be here seeing the Letter was sent To the second he opponed the terms of the Letterâ— To the third alleadged omne verbum de ore fideli cadit in debitum and by these words can be understood nothing else but a Promise which is ordinarly made in such terms The Lords found not the first Defense Relevant per se but found the remnant Defenses Relevant and assoilzied VVilliam Swintoun contra Iuly 18. 1662. THe said VVilliam Swintoun having used Inhibition against at the Cross where he lived she falls Heir thereafter to another Person and immediatly Dispones that Persons Lands whereupon William raised Reduction of that Right ex capite inhibitionis The Defender alleadged absolvitor because the Lands Dâ—poned ly not within the Shire where the Inhibition was used Therefore replyed the Land fell to the Inhibit Person after the Inhibition and the Pursuer did all he was oblieged to do or could do till that time which if it was not sufficient Creditors will be at a great loss as to Lands acquired or succeeded in alter Inhibitions The Lords found the Defense Relevant that the Inhibition could not extend to Lands in other Shires bâ—falling to the Inhibit after quocunque titulo but that the Pursuer ought to have Inhibit de novo or published and Registrat in that Shire seeing all Parties count themselves secure if no Inhibitions be Registrat in the Shire where the Lands ly without inquiring further Lord Frazer contra Laird of Phillorth Eodem die THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth as being Infeft as Heir to his Father who was Infeft as heir to his Grand-father who was Infeft upon the Resignation of Frazer of Doors and also upon the Resignation of the Laird of Pitsligo who was Infeft upon an Appryzing led against Doors and also as being Infeft upon an Appryzing at the instance of one Henderson led against Doors and declared that he insisted primo loco upon the two first Rights flowing from Doors and Pitsligo The Defender alleadged Absolvitor because the Defender in an Improbation against the Pursuer and his Father obtained Certification against Doors Seasine so that it being now improven all the Rights Libelled on falls in consequentiam because Doors is the common Author to them all and if he had no real Right all their Rights are a non habente potestatem so that now the Pursuer has no more in his Person but a Disposition made by Phillorth's Grand-father to Doors and a Charter following thereupon and is in the same case as if Doors upon that ground were craving declarator of Property which he could not do nor would the Lords sustain it albeit there were no Defender because that can be no Right of Property where there is no Seasine The Pursuer answered 1. That the Defense is no ways Relevant nor is the Pursuer in the case of a Declarator upon a Disposition or Charter without a Seasine because he produces a progress of Infeftments and is not oblieged hoc ordine to Dispute Doors his Authors Rights as being a non habente potestatem which is only competent by way of Reduction some representing Doors his Author being called 2ly The Defense is no way competent to this Defender unless he alleadge upon a better Right then the Pursuers for the Pursuer hath done all that is requisit to instruct his Declarator by production of his Infeftments and his authors Rights are presumed and need not be instructed and albeit the Defender be called yet he cannot quarrel the Pursuers Authors Right or hinder his Declarator unless he alleadge upon a more valide Right in his own Person 3ly The Defense ought to be Repelled as proponed by this Defender
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without 〈◊〉 had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâ—ige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâ—itantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
are not called this being an Action that in effect terminateth upon a Perambulation or Determining of the Marches It is a Real Action and there is necessity to call the Heirs of Sir Iohn Hope who died last vest and seased in the other adjacent Lands The Pursuer answered that he offered him to prove that Sir Iohn had Disponed in favour of Sir Alexander and resigned in his time It was answered for Sir Alexander that Sir Iohn was not Denuded seing no Infeftment followed and the Disposition is but an incompleat Personal Right so that some having the Real Right must be called The Lords repelled the Defense in respect of the Reply It was further alleadged for Sir Alexander that he had builded a park dyke upon a part of the Ground in Question before the Pursuers Right sciente astante domino the former Heretor having never opposed nor contradicted which must necessarily infer his consent The Pursuer answered that it was not relevant to take away any part of the Property upon such a presumptive consent neither was he oblieged to disassent seing he knew that which was builded upon his Ground would become his own in edificatum solo cedit The Lords repelled this Defense also but they thought that the taciturnitie might operat this much that Sir Alexander might remove the materialls of his Wall or get from Patrick Nicol quantum partem est lucratus by the building of the Wall Murray of Merstoun contra Thomas Hunterr Eodem die MVrray of Merstoun pursues Thomas Hunter fot a Spulzie of Malt who alleadged that as to that member of the Lybel of the Spulzie of the Malt by the Defenders hunding out or command It is only relevant scripto vel juramento The Pursuer answered that she qualified the Probation thus That the Defender intrusted a Messenger or Officer to execute a Precept of Poynding by delivering him the Precept and therefore the Precept with the execution thereupon is sufficient Probation The Defender answered that the same is not sufficient because the Officer execute the Precept extra territorium whereby it became a Spuilzie which ought not to be imputed to the Defender unlesse it were offered to be proven that he ordained the Officer to Poynd this Malt without the Jurisdiction and that only scripto vel juramento The Pursuer answered that as the giving of a Precept of Seasin is a sufficient warrant without any other Procuratry whatever the effect of the Seasin be so must the delivery of the Precept of Poynding be sufficient to instruct the warrand or command to Poynd where-ever the Poynding was execute and the user of the Poynding should be lyable to the deeds done by the person he intrusts Especially seing not only the Messenger was sent but other Servants and Messengers imployed by the user of the Poynding The Lords found the giving of the Precept of Poynding to the Messenger and his unwarrantable poynding Extra territorium not sufficient only but found it relevant to prove by the Messenger and Defenders Servants imployed by him their Oaths that they were commanded to Poynd this Malt or other goods in this place being Extra territorium Skeen contra Lumsdean Eodem die SKeen having charged Alexander Lumsdean for payment of a Bond for which he was Cautioner for Mr. Thomas Lumsdean his Brother Alexander Suspends on this Reason that the Bond was granted for a Bill of Exchange drawn by one Dutch man upon another to be payed to Skeen or his Order which Bill Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean for which this Bond was granted Ita est the saids Bills of Exchange were not payed but protested and is assigned by Mr. Thomas Lumsdean and his Spouse to the Suspender at least if any payment was made to Mr. Thomas Lumsdean the Cedent it was after the Assignation to Alexander Lumsdean the Suspender and intimation thereof It was answered for the Charger that the Reason ought to be repelled because he offered him to prove by Mr. Thomas Lumsdean at that time Factor at Campheir his Compt-book that albeit the Bills was once protested yet they were payed before Assignation or Intimation The Lords before answer having granted several Commissions to the Magistrats and Conservitor at Campheir to view and examine the Compt-book which was at Campheir They reported that in such a Page of the Book there was three Articles of Receipt in part of payment of the Bills after which Pages the Book was containued and several Compts written therein and that it was Authentick and Unvitiat and all written with the hand of Iohn Muire Mr. Thomas Stepson who was his Book-keeper and that they had been a long time since out of Mr. Thomas hands about the time he Bankerupted and that they had examined upon Oath him who drew the Bill amd him upon whom the Bill was drawn both who had sworn payment was made the question was whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney It was alleadged It could not seing it had no more Effect then as Holograph Discharge which might be made up after the Assignation and therefore proves not against the Assigney It was answered that though a Holograph Discharge will not prove alone yet if by other Adminicles Writs or Witnesses it appeas that the Date is true at least is prior to the Assignation or Intimation it will be sufficient against the Assigney so the Adminicles here are pregnant and strong to prove the time of payment contained in the Compt-Book The Lords found the Compt-Book and Adminicles sufficient here against the Assigney especially considering that the Cedent was his Brother and that it was not presumable that he would do any Deed in making up these Receipts in his Compt-Book in prejudice of his Brother Thomas Beg contra Sir Thomas Nicolson Ianuary 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk he Suspends on this Reason the Charger is only Liferenter and hath no right to lift the Sum because the Bond is conceived thus to Thomas Beg and his Spouse the longest Liver of them two in Conjunct-fee and to the Bairns procreat betwixt them which failzing to two Bairns of a former Marriage Thomas and Margaret Begs and which Bond contains a Precept of Seasife for Infefting the said Thomas and his Spouse and the Bairns of the Marriage which failzing the said Thomas and Margaret Bairns of the former Marriage according to which there was a Seasine taken not only to the two Spouses but to the two Bairns nominatim who therefore are Feears The Lords repelled the Reason because having considered the Bond and Infeftment conceaved as aforesaid they found the Husband by the Conjunct-fee to be Feear and the Bairns of the Marriage to be destinat Heirs of Provision and the said Margaret and Thomas to be only substitue as Heirs of Tailzie failzing the Bairns of the Marriage and that therefore if the Father
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra 〈…〉 Ianuary 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing
Intimat before the Chargers Intimation because the Assignation only doth not Constitute the Suspenders Creditor or the Cedent Debitor until it be Intimat and so there being no debiium and Creditum before the Intimation there can be no Compensation which is contributio debiti crediti The Suspender answered that the Assignation Constitute the Right and the creditum but the Intimation was only necessar in case of Competition of other Assigneys and he needed not Intimat to Scot quia intus habet in respect Scot was owing him as much The Lords found no Compensation unless the Suspender had Intimat his Assignation to the Cedent and so had Constitute him his Debitor before the Cedent was denuded by the Chargers Assignation and Intimation Children of Netherlie contra The Heir Ianuary 24. 1663. THe Children of umquhil Edgar of Netherlie alleadging that their Father left to his Heir a competent Estate and that he dyed before any Provision or Aliment appointed to them and that the Heirs Tutor refused to Aliment them Their Mother being also dead therefore craved an Aliment to be modified there being no compearence in the contrair The Lords found the Brother as being Heir to the Father of a competent Estate lyable to Aliment the Children being wholly unprovided but determined neither the time nor the quantity till the Condition of the Estate were Instructed Bain contra Laird of Streichan Eodem die THe Laird of Streichan being pursued by Bain proponed a Reason of Compensation and produced a Writ for instructing thereof being called at the advising of the Cause The Lords suffered him to Reform the Alleadgence seing he instructed it instantly by another Writ then was formerly produced Sydeserf of Ruchlaw contra Wood. Eodem die THere being mutual Contraventions betwixt Ruchlaw and Wood both relating to a peace of Ground upon the Marches of their Lands which Ruchlaw alleadged to be his Property and that Wood had contraveened by needful Pasturage thereon himself being present when he was desired to remove his Goods off the same and the other alleadging Commonty and that Ruchlaw had contraveened by wilful debarring him from his Commonty The Lords before Answer granted Commission to Examine Witnesses hinc inde concerning their Possession of Property and Commonty and having advised the Testimonies found that the Matter was not so clear as to be the ground of a Contravention and therefore assoilzied both Parties but declared it should be free to them both or either of them to turn their Libel into a Molestation and to reform the same accordingly thereanent They granted again Commission before answer to Examine Witnesses hinc inde anent eithers Possession and the indurance thereof which was not cleared by the former Commission Robert Grahame contra Iohn Rosse Eodem die IN a Competition betwixt Grahame and Rosse and a third Party all Compryzers the posterior Appryzers craving to come in pari passu by vertue of the late Act of Parliament It was alleadged for Grahame who had obtained Infeftment that he ought to be preferred because albeit his Appryzing was since Ianuary 1652. yet he had been in Possession thereby seven years and so had the benefit of a Possessory Judgement This was Repelled because the Act of Parliament was but late before which there could be no ground to come in pari passu and there was no exception in it of these who had Possessed or not Possest before the Act. Secondly Grahame further alleadged that he ought to be preferred because he was Infeft in an Annualrent out of the Lands which is a real Right excepted by the Act of Parliament Thirdly That Rosse could not come in because Rosses Appryzing was before 1652. and the Act of Parliament brings in only Appryzing since December 1652. Fourthly None of the Parties could come in with him until first they payed him their proportionable part of the Composition and Expenses bestowed out by him conform to the Act. The Lords found that albeit Grahames Appryzing was not upon the Infeftment of Annualrent but upon the personal obliegement for the Principal and bygone Annualrents upon Requisitions which was a passing from the Infeftment of Annualrent yet that he might pro loco tempore pass from his Appryzing and might be preferred to his bygone Annualrents upon his Infeftment of Annualrent in this Case of Composition albeit there was yet no Appryzing upon the Infeftment of Annualrent and found that Iohn Rosses Appryzing before 1652. was not excluded but behoved to be in the same Case as if it had been after But found that the other Appryzers before they came in behoved to satisfie the Composition proportionally by the Tenor of the Act. Sir Robert Montgomerie of Skelmarlie contra Iohn Broun Ianuary 28. 1663. SIr Robert Montgomery pursues Iohn Broun for perfecting a Bargain agreed upon in word betwixt them where Sir Robâ—rt was to Dispone the Right of an Appryzing of the Lands of Fordel for which John was to pay 10000. merks After which verbal agreement Iohn Broun write a Letter to Sir Robert in relation to the Bargain bearing that he was affrayed not to get the Money at the time agreed upon and then bearing the said words all I can say now is I am not to pass from what was spoken betwixt you and me The Defender alleadged that this being a Communing in word anent an Heretable Right est locus penetentiae there being yet neither Minute Disposition or other Security Subscribed And as to the Letter it was not to be respected because it was no Minute and mentionated that the Writer was not fully resolved that he would be able to provide the Money and keep the Bargain as for the Word Signifying that he would not pass therefrom it did but express his present resolution and was not Obligatory and though they were so long as Sir Robert might resile notwithstanding of the Letter John Broun might also resile It was answered for the Pursuer that his Libel stood most Relevant because there is only locus penitentiae when there is no Writ but if any Party obliege himself to stand to a former Communing his own voluntar Deed has unquestionably oblieged him unless the other did resile and the Obligation is as valid in a missive Letter as the most solemn Bond Neither are words I am not to pass to be interpret to signifie a Resolution but being in materia obligatoria must signifie an Obligation otherwise all Minuts must be void and are ordinarly expressed in such Terms as are to do or shall do such things and whereas there was several Practicques produced finding locum penitentiae in such Cases though they were Earnest and though there were Possession and a Letter whereby the Resiler designed another Party by the Lands Disponed yet there was no Obligation in Writ as in this Letter and likewise Iohn Brown payed 3000. merks of the price albeit he took a Bond of borrowed Money till things were perfected and got the Keys of
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
own Rigt The Lords Repelled the Defense in respect of the Reply Cicil Ruthven contra Hay of Balhousie Eodem die CIcil Ruthven having granted a Bond to David Lamb that thereupon he might Apprize from her an Annualrent whereunto she was Apparent Heir whereupon she having obtained a Decreet and now seeking Adjudication in Lambs Name Lamb produces under his hand a Writ declaring that his Name was but used in Trust that he disclamed the Processe The Lords notwithstanding Sustained Procâ—sse being so far proceeded in respect of the Declaration bearing the Trust and found he could not disclaim in prejudice of the Trust. Lady Swintoun contra Town of Edinburgh Eodem die THe Magistrats and Councel of Edinburgh having granted them to be Debitors to the Lady Swintoun by way of Act conform to their Custom The Lady supplicat that the Lords would grant Letters of Horning upon the said Act whereupon the Magistrats being Cited upon twenty four hours alleadged they were not Conveenable hoc ordine by suiting Letters of Horning upon a Bill but it ought to have been by an ordinary Summons either craving payment or Letters conform The Lords notwithstanding granted Letters of Horning Baillies of Edinburgh contra Heretors of East-lothian and Mers February 20. 1663. THe Baillies pursue these Heretors for so much allowed of the Maintainance of these Shires of the moneths of August and September 1650. And insisting on an Act of Litiscontestation in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation the same was found relevant The Defenders having now raised a review alleadge that they ought not to have been put to prove total Vastation seing Vastation was Notour these Shires being the Seat of the War where the English Aarmy lay which ought to have freed them unlesse the Pursuers had replyed that the Heretors got Rent that year and had been burdened with the Probation thereof 2dly The Order of Sir Iohn Smiths general Commissar and also of the Provisors of the Army bearing the Provisors to have Furnished such Provisions want Witnesses and might have been made up since they were out of their Offices The Lords adhered to the Act and found the Defense of total Devastation yet Relevant in this manner that the Heretors got no Rent and granted Commission to receive Witnesses at the head Burghs of the Shires for each particular Heretor to prove their particular Devastations and Sustained the Order of the General Commissar he making faith that he subscribed an Order of the same Tenor while he was in Office Hary Hamiltoun contra William Hamiltoun February 21. 1663. HAry Hamiltoun pursues his Brother William as behaving himself as Heir to their Father Iohn Hamiltoun Apothecary to pay six thousand merks of Provision by Bond and condescends that William intrometted with the Rents of the Lands of Vlistobe whereunto his Father had Heretable Right The Defender answered that his Father was not Infeft because he Infeft the Defender therein before his Death Reserving only his own Liferent The Pursuer answered that the Infeftment was under Reversion and was Redeemed by the Father which Order though not Declared gave him the Right to this Land and was more than equivalent to an Heretable Disposition cled with Possession which would make the Apparent Heirs intrometting infer behaving as Heir for the Declarator non constituit sed declarat jus constitutum The Lords Repelled the Defense and duply in respect of the condescendence and reply of the Order used 2ly The Defender alleadged absolvitor because those Lands were Apprized from the Defunct and thereby he was denuded and so the Defender could not be Heir therein at least he could have nothing but the Right of Reversion which reacheth not to Mails and Duties The Lords found that unlesse the Defender had Title or Tolerance from the Apprizer the Legal not being expired but the Debitor in Possession his Heir intrometting behaved as Heir the Apprizing being but a Security of which the Apprizer might make no use or but in Part as he pleased Stirling contra Campbel Eodem die THe same last point was found betwixt these Parties and also that the Heirs Intromission with the whole Silver work so comprehending the best of them which is the Heirship was gestio pro haerede Anna Wardlaw contra Frazer of Kilmundi Eodem die ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer The Debitor raises Suspension of multiple Poinding against Anna Sister and Heir to the said Andrew Wardlaw and Frazer of Kilmundi pretending Right by a Legacy from the Defunct to the same Sum. The Heir alleadged that it could be lyable to no Legacy being Heretable The Defender answered primo the Legacy was made in proâ—inctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset but the Will of the Defunct appearing in eo casu it must be held as effectual as Testamentum militare in procincâ—u which needs no solemnities 2ly The Heirs Husband hath homologat the Legacy by discounting a part thereof It was answered that no Testament whatever can reach Heretable Rights with us 3ly That the homologation of the Husband cannot prejudge his Wife nor himself quoad reliquum not discounted The Lords found the Heirs had only right except in so far as the Husband had homologat the Legacy which they found to prefer the Legator to the whole benefit the Husband could have thereby jure mariti but not to prejudice the Wife thereafâ—er Iames Aikenhead contra Marjory Aikenhead February 25. 1663. THe said Iames insists for the delivery of a Bond granted to his umquhile Father and Assignation thereto by his Father to him against the said Marjory producer thereof It was alleadged no delivery because the Assignation in favours of the Pursuer was never delivered but keeped in his Fathers Possession which cannot be accompted his Possession seing the Pursuer is a Bastard 2ly The conception of the Assignation is to the Pursuer and his Heirs which failzing to the said Marjory and her Heirs and he being now Minor ought not to dispose of the Sum in her prejudice The Lords Repelled the Defenses against the delivery and found that the Pursuer during his Minority should not uplift the Sum till the Defender were called and had accesse to plead her Interest Adam Hepburn contr Helen Hepburn Eodem die THe Estate of Humby being provided to Heirs whatsoever umquhile Tomas Hepburn of Humby in his Contract of Marriage with Elizabeth Iohnsâ—oun provides the said Estate to the Heirs-male and provides 25000. merks for the Daughters there is a Clause of the Contract Bearing that it should be leisome to the said Thomas at any time during his Life to alter the said Provision or to dispone thereof according to his pleasure thereafter upon Death-bed he Disponed the whole Estate in favours of his Daughter of the Marriage being his only Child Adam Hepburn his Brother as Heir-male intents
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right â—b non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
that Term was past before his Presentation at least before his Institution and Collation 2ly There being but a Decreet of Modification and no Locality The Earl alleadged Locality should be first made and he lyable but for his proportional part of the Stipend The Lords found that the Stipend affected the Teinds and the Minister might take himself to any of the Heretorsâ— in so far as he had Teind and therfore sustained the Condescendence and ordained the Charger to prove what Teind my Lord had without prejudice to him to crave his Relief Lady Craig and Greenhead her Husband contra Lord Luire Decemb. 7â— 1664. THe Lady Craig being Infeft in Liferent pursues her Tennents Compearance is made for the Lord Luiâ—e who Appryzed the Lands of her Husband and alleadges that he ought to be preferred because he stands publictly Iâ—feft and any Right the Lady has is but base holden of her Husband and before she attained Possessionâ— he was publickly inâ—eft It was answered for the Lady that her Husbands Possession is her Possession and so her Infeftment was cled with Possession from the Date thereof It was answered that that holds only in the case of an Infeftment to a Wife upon her Contract of Marriage but this was but an additional gratuitous Infeftment stante matrimonio she being competently provided before by her Contract In which case such Provisions cannot prejudge Lawful Creditors neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife unless she had Possessed seven years after his Death The Lords found that such Infeftments as these being gratuitous and voluntar could not be prejudicial to the Husbands Creditors nor give the Wife a possessory Iudgement And the case here being with a Creditor of the Husbands they did not proceed further to consider and determine if the Husbands Possession in such a case would not validat the base Right as to any acquired Right thereafter Eccles contra Eccles. Eodem die IN an Action of a Compt and Reckoning betwixt these two Infants It was alleadged for the Defender that he being pursued upon his Fathers back-bond oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother to Thomas Ecclesâ— and umquhil Andrew Eccles the Pursuers Father It was answered upon condition that Mr. Hugh the Defenders Father should have the third part to himself The Question was concerning the manner of Probation The Pursuer alleadged it was only probable scripto he being a Pupil and his Father dead The Defender alleadged it was probable by the Tutors Oath being so likely in it self that Mr. Hugh being the third Brother should have the third share and that Thomas the Tutor did accordingly allow him the third share and there was produced a Testificat of Balloche that there was an agreement Notwithstanding whereof the Lords refused to take the Tutors Oath ex officio seing they found albeit it were Affirmative it could not prove against the Pâ—pil Scot in Cairlyle contra Henderson and Wilson December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds they Suspend and offer them to prove payment of a part by Witnesses and alleadges that it being the Law of England that Wâ—tnesses can prove to take away Writ that therefore these Bonds being Contracted in England with English men the Suspenders ought to have the same benefit of Probation they would have had if they had been Arrested in England upon their Bonds or pursued there and adduced a Practick of Dury in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves and finding that locus contractus was in England But the Bonds bare expresly a Clause of Registration in Scotland And that such Bonds had been ordinar betwixt Merchants in England and Merchants in Scotland and in no time such a Probation admitted and that it would furnish an ordinary delay in such Cases to the disadvantage of Merchants and hindering of Trade by always offering to prove payment in England by Witnesses which could require long time Therefore they found the reason only probable scripto vel juramento Mr. Cornelius Inglis contra Mr. Rodger Hogg December 9. 1664. MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar upon an Infeftment and Appryzing It was alleadged for the Tennents that they were Tennents to Mr. Rodger Hogg by payment of Mail and Duty to him and he was not called The Pursuer answered non relevat unless the Defenders condescend upon Mr. Rodgers Right which might defend him and them The Defenders answered first that they could not be oblieged to Dispute their Masters Right but he ought to be called to Dispute his own Right 2ly It was insinuat that Mr. Rodger had an Appryzing and a Charge against the Superiour The Lords repelled the Defense unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer being prior to his but the Tennents alleadged no such Right and Mr. Rodgers Charge was posterior to the Pursuers Infeftment Iohn Veatch younger of Dawick contra Alexander Williamson Eodem die JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor for paying to him of his proportional part of the Mails and Duties of Appryzed Lands as coming in pari passu with the Defender by an Appryzing within a year of his The Defender alleadged absolvitor because he has Right to the first Appryzing led before the Act of Parliament betwixt Debitor and Creditor and therefore he has the benefit of the 21. Act of the last Session of Parliament declaring that where an Appryzer for his own Security had redeemed a prior Apprysing and gotten Right thereto before the Act betwixt Debitor and Creditor The said first Apprysing should have the same effect it would have had before the Act Debitor and Creditor and should not come in pari passu The Pursuer answered that behoved only to be understood where the second Appryzer had upon necessity to shun the expyring of the legal redeemed and gotten Right to the first Apprysing which could not be said here because the Debitor being minor the legal had and has a long course to run The Lords sustained the Defense without any such limitation in respect of the express Tenor of the Act of Parliament Robert Learmonth contra Laurance Russel Eodem die RObert Learmonth being pursued by Laurance Russel for the price of Wines and the matter referred to his oath gave in a qualified Oath bearing that the Wines in question were sent to him not to be sold till further order and that therefore he keeped them unsold till the end of the year and when they were in hazard of spoilling sold them for 12 pound Sterling the Tun and that he that sent them was Debitor to him by Bonds and Decreets in a greater sum It was alleadged neither member of the quality was competent not the first because it was offered to be proven that the
that the Liferent of the whole was given in satisfaction of the third and all The Pursuer answered that this could not be presumed unless it had been so exprest no more then a Terce is excluded by a provision of Liferent unless it bear in satisfaction of a Terce The Lords found the Defense Relevant that the Pursuer could not both have her third and the Liferent of the rest but gave her her option either of the third provisione legis or of her Liferent of the whole provisione hominis Earl of Athol contra Iohn Scot. Eodem die THe Earl of Athol having obtained Decreet against Iohn Scot before the Commissar of Dunkeld for the Teinds of the said Iohn his Lands He Suspnds and raises Reduction on this Reason that albeit the Decreet bear a Defense proponed that the Teinds in question are Mortified by the King to a Kirk and that the same was found Relevant and that the said Iohn succumbed in proving thereof yet he offers him to prove that before the Term elapsed he produced the Mortification before the Commissar and thereupon took Instruments which is produced Which the Lords found Relevant Mr. George Norvel Advocat contra Margaret Sunter Eodem die MR. George Norvel pursuing for Mails and Duties upon an Appryzing Compearance is made for Margaret Sunter who alleadged absolvitor because she was Infeft in Liferent before Mr. Georges Right which being found relevant for instructing thereof she produced her Seasine Which the Lords found not to instruct without an Adminicle and therefore sustained the Decreet The said Margaret raised Reduction of this Decreet on this Reason that now she produced an Adminicle viz. her Contract of Marriage 2ly That the Decreet is null because the quantities are not proven The Charger answered to the first that the Lords having found the Exception not proven the Pursuer could not be admitted in the second instance against a Decreet in foro upon production of that which she should have produced at first As to the second he needed not prove the quantities seing her exception was total without denying the quantities The Lords found the Decreet valide but ordained some of their number to deal with Mr. George to show favour to the poor woman Doctor Ramsay contra Mr. William Hogg and Alexander Seton December 22. 1664. THese three Parties having appryzed the same Lands the first Appryzer being Infeft the second not being and the third being Infeft The first Appryzer declared he would not insist for the Mails and Duties of the whole but only possessed a part The question came whether the second Apprizer not having Charged should be preferred to the third who was Infeft It was alleadged for the second Appryzer that he needed not be Infeft because the first Appryzer being Infeft in all he had the only jus proprietatis and there was nothing remaining but jus reversionis which the Appryzing alone carryed and as the second Appryzer might redeem the first as having the right of his Reversion so he might force him either to possess the whole whereby his Appryzing might be satisfied or give warrant to the second to Possess the remainder so likewise he might use Redemption It was alleadged for the third Appryzer that if the question were of the Redemption of the Land the second had good Right but the question being for the Mails and Duties a right of Reversion could never carry these without a Seasine The Lords considering the Point in Law and the great disadvantage the Leiges should sustain if all Appryzers were necessitat to take Infeftment They prefered the second Appryzer Cornelius Inglis contra Mr. Rodger Hog Eodem die MR. Cornelius Inglis being Infest upon an Appryzing pursues a Removing compearance is made for Mr. Rodger Hog who alleadged that he is also Infeft and had charged the Superiour though after the first Appryzer and had possessed seven years by lifting the Mails and Duties and therefore craved the benefit of a Possessorie Judgement The Lords having considered the Case amongst themselves whether an Appryzing and Charge without Infeftment could give the benefit of a Possessorie Iudgement They were equally divided in their Votes and the President resolved before he gave his Vote to settle the Parties contra Edmistoun of Carden Ianuary 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers as Lucrative Successor to his Father by accepting of a Disposition of his Fathers Lands after contracting of the Pursuers Debt alleadged absolvitor because being pursued beforeby another Creditor of his Fathers he did then alleadge that his Disposition was not Lucrative but for a Cause onerous equivalent to the worth of the Land which he proved by instructing the Rental and Rate of the Land at the time of the Disposition by Witnesses and the Sums undertaken for it by Writ whereupon he was Assoilzyed and can never be again conveened upon that ground nam obest exceptio rei judicatae for if he had been condemned as Lucrative Successorâ— upon the other Creditors Probation It would now have proven against him and therefore his beng Assoilzied must be profitable to him against others unless Collusion were alleadged and Instructed The Pursuer answered that this absolvitor was res inter alios acta and albeit a Condemature would have been effectual against the Defender non sequitur that an absolvitor should also be effectuall for him because he was called to that Condemnature but this Creditor was not at all called to the absolvitor 2. Even in a Condemnature if the Defender had omitted any thing that he might have alleadged in the one case competent and omitted would not hinder him to propone the same against another Creditor Therefore the Defender can only repeit the grounds of that absolvitor which if he do the Pursuer will alleadge That whereas in the absolvitor the Defender was admitted to prove the Rental The Pursuer omitted to crave the benefit of Probation which he would have gotten and this Pursuer offers him to prove that whereas the Rental was proven to but 18. Chalders of Victual the true Rental was worth 30. Chalder 3dly A part of the onerous Cause was the Portion of the Defuncts Children which would not Prejudge the Pursuer being an anterior Creditorâ— The Lords found that the absolvitor could not prejudge this Pursuer as to these points omitted and that it could not have effect inter alios except it had been in re antiqua where the Witness had died that in that case the Testimonies out of the former Process might be repeited but as to the Rental the Lords would not give the Pursuer the sole Probationâ— being so lubrick a point as not only what it payed but what the Lands were worth and it might have payed and ordained Witnesses to be examined hinc inde and found that the Bairns Portions not being payed bona fide before the intenting of this Cause could not prejudge the Creditor but ordained the Defender to Suspend on double
Poynding against the Pursuer and the Bairns but in regard of so much ground in the matter they declared they would not sustain the Passive Title to make him Successor universal but only as to the just Price and the Cause Onerous Grahame of Blackwood contra Brouns Ianuary 7. 1665. JOhn and William Brouns having Appryzed certain Lands and William Grahame having Appryzed the same within a year after pursues an Accompt and Reckoning against the first Appryzer upon the last Act of Parliament betwixt Debitor and Creditor and craves to come in pari passu with the first Appryzer not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer since the said Act of Parliament but also for these Duties that were Intrometted with before the said Act and that because the Act bears expresly That such Appryzing shall come in pari passu as if there had been one Appryzing led for both It was answered for the first Appryzer that what he did uplift bona fide before any Process intented against him at this Pursuers instance he cannot pay back a part thereof to the Pursuer because he is bona fide Possessor and because the Act of Parliament bears That such Appryzings shall come in pari passu which being in the future must be understood to be from their intenting of Process at least from the date of the Act but not from the beginning The Lords having considered the Tenor of the Act of Parliament found that such Appryzings should only come in pari passu from the date of the Act but that the bygones uplifted by the first Appryzer before the Act should be accompted to him in his Sum but no part thereof repeited to the second Appryzer and found that the Sums Appryzed for Principal and Annualrent of both Parties should be restricted as they were the time of the Act of Parliament in one total Sum and the Rent to be received from that time proportionally to the total Sums and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour and the charges of the Appryzing without compelling the second Appryzer to pay him the same Normand Lesly contra Gilbert Gray Ianuary 10. 1665. NOrmand Lesly charges Gilbert Gray Provost in Aberdeen to pay 2000 merk for which he was Cautioner for William Gray He Suspends and alleadges that the Charger had gotten an Assignation from the said William Gray to an Bond granted by the Earl of Errol to him and therefore craved that the Charger might be decerned to transfer that Assignation to him being given for the security of the same Sum. It was answered that the Charger was only oblidged to give a discharge to his Cautioner and not an Assignation of the Bond it self and much less of any security ex post facto he had gotten therefore The Lords declared they would not give the Charger Process till he Assigned the Bond and all security gotten therefore to the Cautioner William Reid contra John Reid Eodem die WIlliam Reid pursues Iohn Reid as his Tutor to deliver all Writs belonging to the Pupils Father or which were in his Custody and Possession quovis modo Intrometted with by the Tutor Who alleadged the Pupil could have no interest in any Writs but these which belonged to his Father The Lords found that Pupil had interest to call for Exhibition and Delivery of all Writs that were in his Fathers Possession quovis modo and ordained the Tutor to exhibit all but prejudice to any Partie having interest to crave the delivery of these Writs if they belonged to them Campbel contra Mary Bryson Eodem die GEorge Campbel having right by Adjudication to the Reversion of a Wodset of some of the Lands of Newlistoun Wodset by the Laird of Newlistoun to Andrew Bryson Baillie of Edinburgh whereupon he was publickly Infeft and thereafter did dispone the same to his Daughter Marry Bryson and she was Infeft holden of her Father which Disposition contained a power to the Father to dispone on the Sum in the Wodset Right during his Lifetime without her Consent after all Andrew Bryson obtained a Confirmation of the foresaid Wodset with Addition of 16. aikers of Land more for the same Sum which was conceived in favours of himself and the Heirs of the Marriage whereupon he was Infeft The said George having used an Order of Redemption craved Declarator Compearance is made for the said Mary who craved the said Sum to be delivered up to her It was alleadged by the Pursuer that she could not have up the Sum unless she were Infeft as Heir to her Father both in the first and last Wodset and resigned the same and so liberat the Land of the Burthen thereof for albeit she was Infeft proprio nomine yet it was but base holden of her Father so that the Superiority remained with her Father and she behoved to be Infeft as Heir to him and renunce the same 2. The Corroborative Wodset stood in her Fathers Person who by her Disposition had a Power to dispose of the first Wodset and so had altered the Fee thereof to himself and his Heirs It was answered that the second Wodset was taken when Maries mother was dead and she the only child of that Marriage and so was alike as if her name had been expressed 2. The Declarator it self will sufficiently secure the Redeemer albeit there were no Resignation 3dly The second Wodset is but accessory to the first so that the said Mary having power to renunce the first Wodset proprio nomine the second may be declared to be extinct in consequence and further offered Caution if need were to warrand the Redeemer The Lords found the Lands to be Redeemed but ordained the Money not to be given up untill the said Mary had Infeft her self as Heir to her Father and Resigned for they thought the Redeemer ought to put upon no hazard of repetition or of the danger of the Infeftment unrenunced seing it was the ordinar Course to be Infeft and to renunce Magaret Arnot contra Mr. Robert Arnot Ianuary 11. 1665. MArgaret Arnot pursues a Reduction of a Decreet of Exoneration obtained by William Arnot her Uncle and Executor to her Father It was alleadged for Mr. Robert Arnot Son and Successor to the said William that all Parties having Interest were not called viz The Creditors and Legatars who were concerned in the event of the Reduction for if there Sums and Discharges were not allowed according to the Exoneration The Defender behoved to return upon them for payment and therefore they ought to be called to defend their Interest The Lords repelled the Defense and found no necessity to call the Creditors and Legatars but that the Defender might intimat the Plea to them Neilson and Calender contra Ianuary 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons on which there was an Inhibition used It
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ— the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ— Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
title to it 2. Though it should be condescended that they were lent yet it must be proven only scripto vel juramento being a matter above an hundred pound The Pursuer answered that in liquid Sums or Promises Witnesses are not receivable above that Sum but in corporibus or facts as in bargains of Victual made and delivered Witnesses are sufficient though for greater Value The Lords found the Pursuer behoved to condescended upon the way the books was delivered and found it probable by Witnesses Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh Eodem die MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights Mr. Williams Right was upon a Decreet cognitionis causa against the Appearand Heir renuncing against which Iohn Boyd alleadged that the Adjudication was null proceeding upon a null Decreet cognitionis causa First In so far as it was lybelled at the instance of Kintor as Assigney by his Brother who was Heir to his Father and Execut-Executor and neither Retour nor Testament produced and so was null for want of probation The Pursuer answered that he had now produced in supplement of the Decreet the Writs The Lords sustained the Decreet only as ab hoc tempore 2ly Boyd alleadged that the Decreet cognitionis causa proceeded on six hundered merks which was Heretable by Infeftment and contained Clause of Requisition and no Requisition produced The Lords found the Decreet null pro tanto and to stand for the rest being upon diverse Articles 3ly Boyd alleadged that the said Decreet ought to be Reduced in so far as it proceeded against the Cautioner of a Tutor for payment of the Annualrent of his Pupils money during the Tutorie and for the Annualrent of that Annualrent a tutâ—la finita because the Tutor had uplifted at least ought to have uplifted and imployed the same for the Pupills behove ex officio It was answered that albeit Tutors are oblidged for their Pupils Rent which are in Tennents hands yet not for the Annualrent of their Money being in secure hands then and now if the Tutor had lifted it it would have been lost he being broken and the Cautioner also and the Debitors being great men as the Marquess of Hamiltoun and Lord Burghlie they would easily have Suspended and lost the Pursuers pains The Lords found that Tutors were oblidged to uplift their Pupils Annualrents though the Creditors were secure and to imploy them for Annualrents but not for each year they were due but ante finitam tutelam because though he had them he was not oblidged every year to imploy them severally and so sustained the Decreet 4ly Boyd alleadged that the years of the Tutorie ought to have been proven which was not and so the Decreet is null The Lords sustained the Decreet seing it was lybelled in communi forma unless it were alleadged that some of these years were post sinitam tutelam here a Testificat of the Pupils age was produced Lord Borthwick contra Mr. Mark Ker. Ianuary last 1665. THe Lord Borthwick pursues a Reduction ex capite inhibitionis of all Rights made by Sir Mark Ker to Andrew or Mr. Marks Ker of Moristoun of certain Lands The Defenders alleadged no Process because none to represent Sir Mark Ker were called who being bound in warrandice to the Defenders ought to be called whereas of old Processes sisted till warrands were first discussed so now the warrand ought at least to be called The Pursuer answered that he was not craving Reduction of Sir Marks own Right but of Moristouns Right granted by Sir Mark who was common Author to both And as to the warrandice the Defender might intimat the plea if he pleased The Lords found no Process till the warrand were called Alison Kelloâ— contra Pringle Eodem die ALison Kello pursues a Reduction against the Lairds of Wadderburnâ— and Pringle and craves Certification It was alleadged for Pringle no Certification because he was minor non tenetur placitare de Haereditate Paterna The Pursuer answered primo non relevat against the Production but the Minor must produce and may alleadge that in the Debate against the Reason 2ly Non constat that it is Hareditas Paterna and therefore he must produce at least his Fathers Infeftment 3ly All he alleadges is that his Father had an Heretable Disposition without Infeftment which cannot make Haereditatem Paternam else an Heretable Bond were not Reduceable against a Minor or an Appryzing and Tack 4ly Albeit the alleadgeance were proponed in the discussing of the Reason yet the Reason being super dolo metu upon which the Defenders Original Right was granted and not upon the poynt of Preference of Right the brocard holds not in that Case as it would not hold in Improbation in casu falsi The Lords found that the Defender ought to produce his Fathers Infeftment and that a naked Disposition would not be sufficient which being produced they would sustain the Defense quoad reliqua against the Production but that they would examine Witnesses upon any point of fact in the Reason to remain in retentis that the Witnesses might not die in the mean time without discussing the Reason but prejudice of their Defenses Anderson and Proven contra Town of Edinburgh Eodem die ANderson being Creditor to Proven arrests in the hands of Gairdner all Sums due by him to Proven and thereupon pursues before the Commissaries of Edinburgh Gairdner gives his Oath that he is Debitor to Proven no way but for the Tack Dutie of the Customs of Edinburgh whereunto he was Sub-tacks-man to Proven conform to his Bond produced whereupon the Commissaries decerned Gairdner Suspends on double poynding It was alleadged for the Town of Edinburgh that the Sum in question being a Sub-tack dutie they had the common priviledge of all Masters against their Tennents and Sub-tennents that they might pursue either of them as they pleased without an Arrestment or any Diligence and were alwayes preferable for their Tack-dutie to any other Creditor of the principal Tacksman It was answered that Custom was not in the case of Rents of Lands wherein their is tacita hipotheca and that the principal Tacks-man was only their direct Debitor and the Sub-tacksman paying to the Principal Tacksman or which is equivalent to his Creditor is for ever free and the Town of Edinburgh hath secured themselves by taking Caution of the Sub-tacksman The Lords found the Town of Edinburgh preferable for their Tack-dutie and that they had immediat Action against the Sub-tacksman unless he had made payment bona fide before that they might exclude any other Creditor of the Principal Tacks-man for their Tack-dutie George Baptie contra Christian Barclay Eodem die CHristian Barclay having pursued George Baptie before the Commissares of Edinburgh for Solemnizing Marriage with her because he had gotten her with Child under promise of Marriage as was instructed by his Bond produced
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary â—but in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâ—â—â— upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
they were publickly called to the Bar and received without any objection so that now none is competent 2ly That there is no relevant Exception yet alleadged for the being a Town Officer is no legal Exception neither to be of a mean condition nor to be of a small Estate if he were worth the Kings Unlaw and for the presumptions they were but meer conjectures for it was free for a man to make his Disposition all with his own hand or before Witnesses and what his motives has been to do it cannot be known and so ought not to be presumed fraudulent nam nullum vitium presumitur The Lords having fully considered this case and having Debated whether Witnesses at all were receivable to astruct the Date of a holograph Writ and also whether these Witnesses adduced were sufficient they found that in respect of the presumptions of Fraud adduced these two Witnesses were not sufficient to astruct without further Adminicâ—es either by Witnesses of unquestionable Credit or by Writ Procuratorfiscal of the Commissariot of Edinburgh contra Thomas Fairholm Iune 23. 1665. THomas Fairholm being Charged to give up an Inventar of the Goods and Gear pertaining to umquhil Alexander Deninstoun whose Daughter he had married He Suspends on this Reason that the Defunct had granted a Disposition to one of his Daughters of his hail moveable Goods and sums of Money so that he had nothing the time of his Death and there needed no Confirmation but he might lawfully possess by vertue of his Disposition and there was no Law to force Persons in such a Case to Confirm neither had it ever been sustained by the Lords It was answered that it was juris publici to have the Goods of Defuncts Confirmed that nearest of Kin Children Creditors and Legatars might know the condition thereof and this Defuncts moveables albeit Disponed yet not Delivered remained in bonis defuncti and so behoved to be Confirmed The Lords having Read the Disposition and finding it to be general omnium bonorum that he had or should have the time of his Death and there being nothing alleadged of any onerous Cause or that it was before his sickness albeit the Case was new yet they found there was necessity of Confirmation in this Case But if it had been a Disposition only of special things as Bonds or Goods or had been for any onerous Cause or had been made in leidg pousti and any symbolical Delivery the Lords were not so clear in it but resolved to hear such Cases in their own presence when they should occur Collonel James Montgomery contra Wallace and Bouie Iune 24. 1665. THe Collonel as Heretor of the Miln of Tarboltoun having pursued Bouie for abstracted Multures of Drumlie It was alleadged for Bouie and Wallace of Garricks who had Disponed to him with warrandice absolvitor because Wallace and his authors were Infeft in the Milns and Multures before the Pursuers Infeftment of the Miln The Pursuer Replyed that the Thirlage was Constitute by a Decreet in Anno. 1569. against the Tennents of Drumlie therein mentioned The Defender answered First that the Heretor was not called 2ly That it did not appear that these Tennents did dwell in Drumlie Wallace there being two Drumlies lying contigue one called the Dinks Drumlie the other called Drumlie Wallace 3ly That for any Possession they offered them to prove that it was interrupted from time to time by going to other Milns The Lords having Ordained Witnesses to be Examined hinc inde whether the Tennents in the old Decreet did possess Drumlie Wallace or the Dinks Drumlie 2ly What Possession the Pursuer and his authors had 3ly What Interruptions the Defender and their authors had many Witnesses being Examined hinc inde It was clear that since the year 1653. when Capringtoun the Pursuers author died there was no Possession and there was not above twenty eight years Possession proven before because there was no Witness of that age that could have been of Discretion fourty years before the year 1653. but they found it proven that the Persons mentionate in the old Decreet or some of them were Possessors of Drumlie Wallace and also there was a Tack produced set by the Pursuers author to one of the Tennents of Drumlie wherein it was provided that the Tennent should relieve him of the Multures and did not express what Miln The Lords found the old Decreet although the Master was not called thereto was not sufficient alone yet with a long Possession thereafter they found the same was sufficient to Constitute the astriction and found the Interruptions by going to other Milns were not so frequent and long but that they might have been private and Clandestine and the Probation during memory before this contraversie was found to instruct anterior Possession to compleat prescription Irwing contra Strachan Eodem die ALexander Strachan as Assigney by Patrick Gordon Charges Iohn Irving to make payment of a Bond of 500. merks which being Suspended on this Reason that the Cedent was Debitor to the Suspender in a greater sum being oblieged for the grouth of certain Lands of the Cropt 1633. and certain Bolls of Meal as the Duty thereof The Charger answered that this was not liquidat against him nor against his Cedent before his Assignation The Suspender answered that it was liquidate before in so far as there was a Decreet of Liquidation obtained against the principal Party for whom the Cedent was Cautioner in the Contract which must be sufficient against the Cautioner albeit he was not called because his obligation was but accessory unless he could instruct Collusion and this Decreet of liquidation proceeds upon Probation of Witnesses The Lords sustained the Compensation and found the Liquidation sufficient being against the Cautioner though he was not called and against this Assigney seing the Decreet was before the Assignation Alexander Ferguson contra Steuart of Askeoge Iune 27. 1665. ALexander Ferguson having obtained a Presentation from the King as one of the Prebenders of the Chapel-Royal and thereupon a Decreet conform and having Charged Steuart of Askeoge he gives in his special Charge that the Paroch of Inchgarth which is now annexed to Rothesay belonged to his Prâ—bendrie as being a part of the Patrimony of the Chapel-Royal It was answered for Askeoge that he bruiks the Teinds by vertue of a Tack granted by Mr. Ninian Steuart Minister of Rothesay whereof this Kirk now annext is a part and that there is nothing appears to instruct that these Teinds were ever Mortified to the Chapel-Royal or that the Chapel-Royal was in Possession thereof The Pursuer answered that seing he had the Kings Gift and Decreet conform it was sufficient unless the Defender would alleadge that the said Mr. Ninian Steuart had a better Right or was in Possession for the King being the Common Author and Fountain of Rights His Majesties Gift is sufficient against any that show not a better Right and as for the Tack produced it is null
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâ—fted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ— Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâ—uro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
albeit it appears to flow from the Mother yet that is but dolose and in effect it flows from the Father 2. Seing the superplus was appointed to be an Aliment to the hail Children seing there is but one it ought to be modified and what remained above the 600. merks and a competent Aliment to belong to the Creditors The Lords found that the Childs Renunciation should repone himâ— and found that if the Provision had been Exorbitant it might have been counted as fraudulent but they found it not exorbitant seing the Land was offered to the Defenders for 900. merks and there was 200. merks thereof Liferented by another Woman so that there râ—mained but 100. merks for the Child and therefore Repelled the Defenses and Decerned VVilliam Dickson contra Iohn Hoom. Eodem die WIlliam Dickson having charged Iohn Hoom upon a Bond of 37. Pounds Scots He suspends and offers to improve the Bond as not subscribed by him but another Iohn Hoom. It was answered Improbation was not receivable but in a Reduction or where the original Writ was produced But this Bond was Registrate in an Inferiour Court and the Charger was not oblieged to produce nor was the Clerk called The Lords in respect the matter was of small importance admitted the Reason of Improbation the Suspender Consigning principal Sum and Annualrent and declared they would modifie a great Penalty in case he succumbed and ordained Letters to be direct against the Clerk of the inferiour Court to produce the principal Howison contra Cockburn November 17. 1665. THe Executors of David Howison pursue Iames Cockburn for the price of several ells of Cloath which the said Iames by his Ticket produced granted him to have received in name and for the use of the Laird of Langtoun his Master It was alleadged absolvitor because by the Ticket the Defender is not oblieged to pay the Cloath and doth only act in name of his Master and therefore the Merchant ought to have called for the Accompt from his Master within three years which he has not done till many years long after his Masters death It was replyed that the Ticket must obliege him at least docere demandato for his doing in name of his Master could not obliege his Master so that if he be not so oblieged the Merchant loses his Debt and no body is oblieged It was answered that he who Acts with any Mandatar should know his Commission and if he does not know it it is upon his own hazard but if the Mandatar Act not in his own name but his Masters he does not obliege himself and if Servants who receive in their Masters name should be thus oblieged to shew their warrand it would be of very evil consequence seing their Receipt can be proven by Witnesses within three years and their Warrand would not be so probable The Lords found that post tantum tempus the Defender was not oblieged to instruct his warrand but the same was presumed to have been known to the Merchant unless it be proven by the Defenders Oath that he acted without a warrand or that he did not apply the Cloath to his Masters use Baxters in the Canongate November 21. 1665. THere being a Contract betwixt two Baxters in the Canongate to make use of an Oven still keeped hot for both their uses the one pursues the other as desisting and obtained Decreet before the Baillies of the Canongate for 36. Pounds of Damnage which being Suspended It was alleadged ipso jure null as having compearance mentioning Defenses Replys c. And yet expressing none but refers the Defenders Action to the Pursuers Probation by Witnesses who now offered to prove positive that he continued in doing his part The Lords would not sustain this visible Nullity without Reduction though in re minina inter pauperes for preserving of Form Laurence Scot. contra David Boswel of Auchinleck November 22. 1665. UMquhil David Boswel of Auchinleck being Debitor to Laurence Scot in 1000. pounds by Bond He pursues his Daughters as Heirs of line and David Boswel now of Auchinleck his Brothers Son as Heir-mail or at least lucrative Successor by accepting a Disposition of Lands from the Defunct which were provided to Heirs-mail and so being alioqui successurus It was alleadged for the said David no Process against him till the Heirs of Line were first discuâ—â— It was Replyed and offered to be proven that he was oblieged to relieve the Heirs of Line Which the Lords found Relevant It was further alleadged for the Defender that he could not be conveened as lucrative Successor by the foresaid Disposition because the time of the Disposition he was not alioqui successurus in respect that his Father was living It was answered that albeit he was not immediat Successor yet being the mediat Successor the Disposition was precepâ—â—o haereditatis and the Lords had already found that a Disposition to an Oye made him Lucrative Successor albeit his Father who was immediat appearand Heir was living The Lords sustained not the Lylel upon that member for they found it was not alike to Dispone to a Brother as to a Son or a Brothers-son as to an Oye because a Brother is not appearand Heir nor alioqui successurus seing the Disponer has haeredes propinquiores in spe and therefore cannot be presumed to have Disponed to his Brother or Brother Son in fraud of his Creditors seing that by that Disposition he does also prejudge his own Son if he should have one and this 〈◊〉 prejudice to the Pursuer to Reduce the Disposition upon the Act of Parliament as accords Mr. Iames Campbel contra Doctor Beaton November 23. 1665. DOctor Beaton being Infeft in certain Lands Wodset by the Laird of Balgillo does thereafter by a minute take an absolute Disposition thereof for a price exprest in the Minute whereupon Mr. Iames Campbel arrests in Doctor Beatons hands all Sums due by him to Balgillo for payment of a Debt due by Magillo to Mr. Iames and likewise Iuhibits Bagillo after which there is a Tripartite Contract betwixt Bagillo on the first part the Doctor on the second and Iohn Smith who bought the Lands on the third the Doctor and Bagillo Dispone with mutual consent and the Doctor particularly assigns the Minute to Smith Bagilâ—o Renounces the Minute as to the price and Smith is oblieged to pay the Wodset to the Doctor the Debitor being before conveened for making arrested Goods forthcoming and having Deponed that he was owing no Sums to Bagillo the time of the arrestment but by the Minute which was an Inchoat Bargain never perfected but was past from thereafter and that he was not Disponer to Smith but only consenter whereupon he was assoilzied But Mr. Iames Campbel having now found the Tripartite Contract pursues the Doctor again thereupon super dolo that by passing from the Bargain and yet assigning the Minute and not destroying it he had dolose evacuate Mr. Iames Inhibition and Arrestment seing Smith
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupil◠and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fathe◠Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
offered to be proven that he broke up Iohn Ramsays Celler and took them out 3dly The Colonel Impignorat them by Writ and so the Presumption of allienating them ceased because he went immediately out of the Countrey and never returned It was answered that there is no difference of Jewels more than any other Moveables which use to passe without Writ from Jewellers that sell them and the Pursuer having possest them these 10. or 12. Years without question has right thereto by usucapion The Lords found the alleadgeances joyntly relevant to elied the presumption and that there is no usucapion in Moveables in Scotland by Possession in less then 40 years but only a presumptive Title which is altogether eleided by the Answers Duke of Hamiltoun contra Laird of Clackmanan December 14. 1665. THe Duke of Hamiltoun as Collector of the Taxations 1633. charges the Laird of Clackmannan who Suspends and produces Discharges of the first three Terms It was alleadged these discharges could not liberat because they were granted by Iohn Scobie who was neither Sheriff Baillie nor Clerk nor does it appear that he had any Warrand or Commission nor does his Discharges mention any Commission or Warrand It was answered that by the Discharges produced it appears that Ormistoun and Humbie deputed for the Duke had granted Discharges to this Iohn Scobie and offer to prove that he was in use of uplifting the Taxations during the Terms themselves and was commonly repute as Collector thereof which must be sufficient post tantum tempus It was answered that that ground would not oblidge the Sheriff and so both the Heretor and Sheriff being free the King looseth his Right Yet the Lords sustained the Reason Monteith contra Mr. John Anderson December 15. 1665. IN a Reduction at the instance of Monteith against Anderson a Reason of payment being found relevant Mr. Iohn produced an Incident at the first Terme and a Diligence against Witnesses for proving the having of the Writs at the second Term. Which Incident the Lords sustained and would not restrict the Terms of probation in the Incident to Horning against the Witnesses and Caption but allowed four Terms and ordained the same to be shorter Mr. John Elies contra Keith Eodem Die THere was a Bond of 6000 merks granted by Wiseheart Parson of Leith and Keith his Spouse to Mr. Iohn Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands with a Procuratorie The Wife had then the Lands of Benholm belonging to her Heretablie lying in the Mairns Mr. Iohn having Inhibite her Husband and her she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns and having thereafter right to a Sum of 10000 merks for which she was Infeft under Reversion in other Lands an order of Redemption was used and the Money consigned Mr. Iohn Elies pursues a Declataror to hear and see it Found and Declared that the said Keith was oblidged to infeft him in an Annualrent out of her Lands which she had fraudulently Disponed contraire her obligation and therefore was now oblidged to Infeft him in other her Lands or to pay the Sum as damnage and interest and that therefore any other Lands or Rights belonging to her might be affected for his payment and particularly the Wodset now in question Compearance was made for the Defenders Grand-child who had a Right from her Grand-mother to the Wodset who alleadged First That the Bond bearing an oblidgement for Debt granted by the Wife stante matrimonio was null It was answered that albeit the Personal oblidgment were null yet the oblidgment to Infeft in an Annualrent granted by a Wife is valid either against her Heretage or Liferent and alleadged several Dicisions therefore It was answered that the Wife might do so if she had borrowed money for her own use or were principally bound to Infeft in an Annualrent but this oblidgment being in security of her Personal obligatigation with her Husband the principal obligation being null the accessory is also null The Lords repelled the alleadgeance and found the oblidgement to Infeft valid albeit accessory because Deeds and Obligations of Wyfes not to affect their Persons but Estates are valid and albeit she had not been bound for the principal Debt she might either have effectually disponed an Annualrent or which is all one oblidged her self to Infeft in an Annualrent out of her Heretage utile per inutile non vitiatur It was further alleadged that this Wodset or Sum disponed to her Oy could not be affected because her Oy was the youngest of many Oyes and did no wayes represent her The Lords sustained this Member of the Declarator also upon the Act of Parliament 1621. against Dispositions between Conjunct Persons without a cause onerous which they found might either be a ground to reduce the same or to declare the same to be affected as if the Right were in the Disponers Person Herein it was also lybelled That this Wodset albeit acquired after the Inhibition yet seing it lay in the same Shire where the Inhibition was published the Grand-child's Right were Reduceable upon the Inhibition The Lords thought so because Inhibitions being Personal Prohibitions reach both acquisita and acquirenda by the Person Inhibit in the Shires where it is published Laird Kilbocho contra Lady Kilbocho December 20. 1665. THE Lady Kilbocho by her Contract of Marriage being provided to certain Lands with this provision further that she should have the Liferent of all Lands Conquest during the Marriage whereupon she obtained a Decreet in the English time which being now under Reduction It was alleadged the Clause of Conquest could only give her the Lands Conquest with the Burden of the Annualrent of a Sum due by the Defunct to a Person from whom he bought the Land as being a part of the Price of the Land especially seing by a writ under the Defuncts hand he acknowledged that this Bond was granted for a part of the Price It was answered First That a Personal oblidgement cannot affect the Land neither can it affect the Ladies Person but if the Defunct had pleased he might have granted an Annualrent out of the Lands Conquest which then would have affected it which not being done his declaring that this Sum was a part of the price cannot be effectual nor can infer a Probation against his Wife in prejudice of her anterior Right Secondly This alleadgeance might be proponed as well against the Heir of Conquest as Liferenter thereof and yet it was never found that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it nor yet to relieve the Heir of Lyne thereof but on the contrair the Heir of Conquest has relief against the Heir of Lyne for Personal Debt though borrowed for acquiring the Right The Lords found that the Case was not alike with the Heirs of Conquest whom Defuncts do Infeft
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ— though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
obtained that that Decreet should be transferred against him and it should be declared that the Adjudication should proceed against the next Appearand Heir It was alleadged for the Defender that the former Appearand Heir having dyed before Adjudication and so the Diligence being incompleat there could be no Process thereon till this Defender were again charged to enter Heir to the first Defunct especially seing he had Annum deliberandi competent to him of the Law which would be taken from him if this order were sustained and as an Appearand Heir charged though the dayes of the Charge were run before his death the same would be void if no Decreet had followed thereupon And the obtainer behoved to obtain his Diligence thereupon renewed so it ought to be in this Case It was answered the Case was not alike for here there is a Decreet obtained upon the Heirs Renounciation and there is no reason to put the Creditor to do diligence again especially now since the late Act of Parliament whereby if he get not Adjudication within a year he will be excluded and there are other Appryzings already deduced The Lords Sustained the Process hoc ordine with this provision that if this appear and Heir entred and Infeft himself within year and day the Adjudication should be redeemable to him within the Legal Reversion of 10. years by which neither the Creditor was prejudged of his diligence nor the Heir of his Priviledge Lord Rentoun Justice Clerk contra Fewars of Coldinghame Eodem die MY Lord Rentoun as being Infeft in the Office of Forrestrie by the Abbot of Coldinghame containing many special servitudes upon the whole Inhabitants of the Abbacie as such a dutie out of Waith Goods and out of all Timber cutted in the Woods of the Abbacie with so many Woods Hâ—ns and a Threave of Oats out of every husband Land yearly pursues Declarator of his Right and payment of the bygones since the year 1621. And in time coming both Parties being formerly ordained before answer to produce such Writs and Rights as they would make use of and these being now produced The Pursuer insisted primâ— Loco for Declaring his Right as to the Threave of Oats It was alleadged for the Defenders absolvitor because they had produced their Fews granted by the Abbots of Coldinghame prior to the Pursuers Infeftment free of any such burden It was answered The Defense ought to be Repelled because the Pursuer has not only produced his own Infeftment but his Predecessors and Authors Infeftments and his progresse to them viz. The Infeftment granted to David Evin of the Forrestrie containing all the Duties a foresaid which is before any of the Defenders Infeftments produced It was duplyed for the Defender that the Infeftment granted to the said David Evin is no original Infeftment but bears to be granted on his Mothers Resignation and has no special reddendo but only relative to the former Infeftments And therefore unless the former Infeftments were produced or it were instructed that the Resigner had Right the Infeftment upon Resignation can operat nothing especially never being cled with Possession as to the Threaves of Oats in questionâ— for there is great odds betwixt Infeftments granted by Kirkmen who are but administrators of the benefices and others who have plenum dominium so that Infeftments upon Resignation of Kirkmen are to be understood to confer no more Right than the Resigner had and not to constitute any original Right where there was none before in the same way as Infeftments granted by the King upon Resignation are but periculo petentis and give no Right further then the Resigner had even against the King It was answered for the Pursuer that his Reply stands relevant and he produces sufficiently to instruct his predecessors Right for there is no Law nor Reason to compell Parties to produce the old Original Feus granted by Kirkmen but Infeftments upon Resignation are sufficient neither is the Case alike as to the King and Kirkmen because things passe not by the King ex certa scientia which no other can pretend but in this Case declaring a Right granted by an Abbot with consent of the Convent it must be considered what made a Right the time that it was granted when there was no more required then his Concession with consent foresaid which is sufficient against him and his successors neither can they pretend that such grants are salvo jure suo And if in matters so Ancient Original Infeftments from Kirkmen behoved to be produced that neither Precepts of clare constat nor Infeftments upon Resignation were sufficient Few rights of Kirk-lands in Scotland would be found valid The Lords Repelled the Defense in respect of the Reply and found this Infeftment upon Resignation sufficient Iohn and Ioseph Heriots contra James Fleming Messenger and Cautioners January 19. 1666. JOhn and Joseph Heriots having obtained Decreet before the Lyon against James Fleming Messenger and his Cautioners depryving the Messenger upon Malversation in so far as being imployed to execute a Caption he had taken the Debitor and had Denounced and Appryzed his Lands and suffered the Debitor to escape and would not subscribe the Decreet of Appryzing whereupon he was depryved and decerned to pay 500. merks conform to the Act of Parliament 1587. cap. 46. And both he and his Cautioners were decerned to pay the Sum as Damnage and Interest to the Pursuer They Suspend and alleadge that the Decreet is null in so far as it was pronounced by the Lord Lyon without the concourse of the Heraulds which is required by the said Act. 2dly Albeit the Lyon be impowred to deprive Messengers by the said Act yet their Cautioners are not under his jurisdiction nor the damnage and interest of Parties by Messengers malversation which is only competent to the Judge ordinary It was answered to the first oppons the Decreet wherein the Cautioners compeared and so acknowledged the Lyons Jurisdiction as he then sat likeas the Decreet it self bears to be by the Lyon with the Heraulds To the Second The Cautioners having enacted themselves in the Lyons Books they have made themselves lyable and for the damnages they are consequent to every Jurisdiction and the Lyons have been constantly in use to determine the same as to this Point The Lords were of different judgements for they thought that by the Act of Parliament the Lyon had no such power but as to long Custom some thought it was sufficient to give that power and there was no inconveniencie seing his Decreets might be Suspended Others thought that Custome being clandestine and without the contradiction of Parties who might voluntarly submit themselves to any Authority could not be sufficient The Lords Ordained before answer the Lyons Books to be produced to see if there were such a Custome before it were decided and how far that Custome would work Christian Braidie contra Laird of Fairney January 20. 1666. CHristian Braidie having pursued a Reduction of a
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâ—erent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â— yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ— because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
prejudged as to the constituting an Annualrent in the point of Right not being called yet as to the Point of Possession the Right being constitute he might 3dly Albeit the Heretor must be called when his Ground is first affected with an Annualrent in attinenda possessione yet if the Annualrenter be in possession he may continue the same without calling the Master as well as in Tyends Thirlage c. And here the old Precept of Poynding was evidence sufficient of a prior Possession in re tam antiqua The Lords found that the Decreet was Possession sufficient to interrupt Prescription Minister of contra Lord Elphinstoun Iune 16. 1666. MInister of pursues the Lord Elphinstoun for the Viccarage Teinds of his Lands in his Paroch It was alleadged absolvitor because he brooked these Lands by immemorial possession without paying any Viccarage and so had prescribed Exemption and Liberty It was answered that the Viccarage being due de jure cummuni desuetude cannot take them away nor can any Prescription give Right to them unless it were by a Title as if the Lands had been Templar Lands or belonging to these Orders which payed no Teynds but were exempted by the Cannon Law and therefore in the last Session it was found in the Case of the Earl of Panmoor that 40. Years did not prescribe the Right of Parsonage except for the Years preceeding the 40. It was answered that there was a great difference betwixt Parsonage and Viccarage which is Local and Consuetudinary which is therefore only found due according to what has been accustomed to be payed so that the Teynd of Lint Hemp Geess Stags Swine Fruits Fishes are only due in these parts where they have been so accustomed and therefore as custome may take away a part so it may extinguish the whole The Lords found the Defender could be no furder lyable then for that Viccarage which was commonly payed throughout all the Kingdom viz. Stirk Lamb and Wool and sustained not the same for Milk or any other particular But the Defender upon the twenty one of Iune having Supplicat to be further heard alleadging that it was a common Case that when the Lands were most in Labourage and the Viccarage small and not considerable that through the whole Country Viccarage was never craved time out of minde The Lords stopped Interlocuquutor till they were further heard Thomas Begg contra Patrick Nicoll Iune 22. 1666. THomas Begg gave Commission bearing that he had delivered a certain Sum of Money to Patrick Nicoll to buy Wair for him in England whereunto there is subjoyned the said Patrick his acceptance bearing Sea hazard excepted Thomas Begg now pursues for the Money or Wairâ— Patrick Nicoll alleadged absolvitor because he offers him to prove that shortly after the said Commission he went upon the Voyage and that the Ship was taken and the whole Goods there wherein it must be presumed the Pursuers Money was It being impossible for the Defender to prove that that individual Money was there and yet he is willing to make faith that it was there It was answered that the Defender had Factor-fee and should have transmitted the Money by Bill as he did some of his own and at least he might prove that he had a considerable Sum of Money in the Ship The Lords sustained the Defense and Repelled the Reply and that the Defender being trusted by the Pursuer he could not refuse his Oath in Supplement that his very Money was taken seing he neither might nor could show what money he had when he entrèd to his voyage unless the Pursuer alleadged that he gave the Defender allowance for the Exchange Earl of Eglingtoun contra Laird of Cunninghamhead Iune 23. 1666. THE Earl of Eglingtoun pursues the Laird of Cunninghamhead for the Teynds of Peastoun who alleadged absolvitor for 60. libâ— Yearly which by Decreet of the Plat he payed to the Minister of Irving and produces the Decreet It was alleadged that where the Decreet bore out of the Teinds it was meer Error of the Clerk and disconform to the ground of the Decreet which was a tripartite Contract whereby the Earl of Eglingtoun agreed for so much Victual out of his Teynd beside what was to be payed by the Town of Irving and Heretors and the Heretors oblidged them and their Heirs and Successors of these Lands to pay so much Money which cannot be understood out of their Teynd they being oblidged as Heretors and the Teynd not being theirs but the Earl of Eglintouns who was oblidged so much out of his Teynds besides these oblidgments It was answered that this being to lay a burden of Stipend upon the Stock is most unfavourable and the meaning thereof cannot be inferred unless it had born expresly out of the Stock especially seing the Teynd was under Tack and it was ex gratia for them to pay any more then their Tack-duty but now when the Tacks are expired the Earl cannot crave the whole Teynd and lay this burden upon the Stock 2dly The Lords cannot alter the express tenor of the Decreet of Plat which was a Commission of Parliament The Lords found that the tripartite Contract as to this did not burden the Teynds and therefore seing the Plat could only decern out of Teynds they found that by this Contract the Heretors behoved to relieve the Teynds of this burden out of their Stock Arbuthnet contra Mary Keith Eodem die Andrew Arbuthnet having gotten a Gift to the behove of the Viscount of Arbuthnet of the Marriage of the Heirs of Iohn Keith of Pâ—tten did thereupon pursue the two Heirs Portioners one of them being dead he insists now against the other for her part who alleadged no Process because none was called to represent the other who is thus far interessed that the Probation of the avail of the Marriage against the one will prejudge the other The Lords Repelled the Defense and found it would not prejudge the other against whom new Probation behoved to be used Patoun and Mercer contra Patoun Eodem die JOhn Patoun as Heretor of the Miln of Mukart pursues for the abstracted Multures and alleadges that the Miln is the Miln of the Barony and the Lands a part of the Barony and that they being in immemorial Possession of Intoun Multures of one peck of the Boll and that above thirty years ago there was a Decreet arbitral by the Marquess of Argyle Decerning these Multures The Defenders alleadged Absolvitor because they were Infeft before the Pursuers Right produced cum molindinis and as to the Act of Court the whole Tennents were not present and the Decreet Arbitral it is under Reduction The Lords sustained the Pursuers Condescendence reserving the Reduction as accords Masson contra Iune 27. 1666. MAsson pursuing a Declarator of Escheat It was answered that all Parties having Interest were not Cited at the Mercat Cross conform to the Warrand of the Letters It was answered that was but stilus curiae long indesuetude and
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
as Heir to his Father by Intromission with the Mails and Duties of the Lands wherein his Father dyed Infeft as of Fee for payment of a Debt of his Fathers who alleadged absolvitor because any Intromission he had was by a Warrand and tollerance of Sir George Kinnaird who stood Infeft in the Lands upon a Gift of Recognition It was answered non relevat unless the Gift had been Declared before the Defenders Intromission because the Gift would not have given Right to the Donatar himself to possess The Defender answered that the Gift was Declared before the Intention of the Pursuers cause which Declarator albeit after Intromission yet must be drawn back to the Gift to purge the vitiosity of the Defenders Intromission in the same way that the Confirmation of a Testament will purge anterior vitious intromission the Confirmation being before the intenting of the Cause The Lords found the Defense relevant to elid the passive Title seing any colourable Title is sufficient to excuse the vitiosity but did not find that the Declarator before intenting the Cause had the same Effect as a Confirmation because by constant Customs such confirmations purge the preceeding vitiosity which has never yet been found in this Case of an Heirs intromission with the Rents of Lands but the Lords found the Defender lyable for the single value of his Intromission Alexander Burnet contra Iohnstouns Eodem die JOhn Iohnstoun having disponed the Lands of Fraster-hill to Gordoun of Lesmore whose Right Alexander Burnet having appryzed and by the appryzing having Right to the Clause of Warrandice contained in the Disposition charges Iohnstoun the Disponer to warrand the Right against a posterior Right granted by him to William Iohnstoun who had obtained first Infeftment It was answered that the Warrandice could have no effect because there neither was nor could be a distress in so far as in William Iohnstouns Disposition Iohn Iohnstouns and his Wifes Liferent were reserved during whose life he could never distresse Burnet 2ly It was Burnets authors fault that for many years he did not take Infeftment having long Right before the second Disposition It was answered that Iohnstoun himself could never object this delay to excuse his fraudulent Deed of granting double Dispositions whereby Parties become infamous by the Act of Parliament 1540. cap. 105. and unto the other point albeit there was no present distress yet there was unquestionable ground of a future distress against which the Defender could answer nothing that could elid it and who being but a naked Liferenter if no execution should pass upon the Clause of Warrandice during his Lifetime he would be fully frustrat The Lords decerned Johnstoun the Disponer to purge the posterior Disposition granted by him and found neither of the alleadgeances in the contrair relevant Brown and Duff contra Bizet July 18. 1666. BRown and Duff having obtained Decreet against Bizet for a Sum due to Umquhil Andrew Duff Merchant in Polland Bizet raises Suspension and Reduction upon this Reason that this Sum having been in bonis defuncti the Charger could have no Right thereto till it were established in their Persons by a Confirmation in Scotland by the Commissaries of Edinburgh ut in communi patria It was answered moveables sequuntur personam and therefore wheresoever the moveables be they are regulat according to the Law of the place where the Defunct resides and it is instructed by the Testimony of the Consul and Counsel civitatis Regiae pusensis that by the Common Law and Law of that place moveables belonged to the Wife and Bairns and the Pursuers were so cognosced by them declaring the said Clares Brown Wife and the said Duff the only Daughter of Andrew Duff and therefore they have sufficient Right without Confirmation in Scotland which appears by the Act of Parliament James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do and that it was so decyded the 16. of Feb. 1627. Lauson contra Bastil Kello It was answered that it was otherwayes decided in the Case of Rob contra French 25. Feb. 1637. And there was no reason that these that lived out of the Country animo remanendi should be in better condition then these that resided in the same and behoved to Confirm and to pay the Quot The Lords found that the Testament behoved to be Confirmed by the Commissars of Edinburgh for having considered the old Act of Parliament they found that the poynt there ordered was to what Judicatures the Merchants going abroad to Trade should be lyable and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their Testament would be confirmed viz. where they had their Domicills but these that went out of the Country to remain are excepted but nothing exprest where their Testament should be Confirmed and for the Decision the Point in question was not whether a Confirmation in England was valid but whether a Confirmation without an Inventar was valid and therefore seing nothing was objected against the Confirmation it self The Lords did justly find that the wanting of an Inventar in an English Confirmation where that was the custome did not prejudge it neither is the Case determined by the Decision betwixt Rob and French in respect that the Executor having Confirmed in England and rather being Confirmed by the Legatars would not own the Confirmation but renunced the same and therefore the Lords found no Consuetude or Decision in the Case but determined the same ex bono aequo Hellen Millar contra Watson Iuly 21. 1666. WAtson having obtained a Decreet before the Lords against Hellen Millar for the Rent of some Tenements in Glasgow she Suspends and raises Reduction on these Reasons First That the Decreet was null as being ultra petita in so far as the half of the Duties was only lybelled and the whole was decerned 2dly That Watson's Right was as Heir to Watson who was first Wife to Brown who stante matrimonio acquired this Right to him and her and the one half to her Heirs and the other to his which was a Donation betwixt Man and Wife revocable and revocked by the Infeftment granted to Hellen Millar in Liferent his second Wife It was answered that the Decreet being in foro contradictorio was irreduceable 2dly That the Right was not granted by the Husband to the Wife but acquired from a third Partie The Lords reduced the Decreet finding that it was visibly Extracted by error of the Clerks being ultra petita and therefore sustained the second Reason albeit it was omitted that it was a Donation betwixt Man and Wife being acquired to the Man and Wife and so presumed to be by his means which is equivalent as if he had been Author unless that Watson could condescend that it was by the Wifes means Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh Eodem die GAvin Hamiltoun as Assigney by the Collector of vaccand Stipends
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
far as his Fathers Liferent was reserved thereby and his Father Possessing by vertue of the Reservation did validat his Infeftment 2ly Albert the Fathers own Possession could not be sufficient yet the Father having Transmitted his Right to Watson and Watson Possessing the Suspicion of â—â—mulation ceased and there is a Disposition produced by the Father to Watson which though it bear to be of the Fee yet can import no more but to be of the Liferent seing the Father had no more neither needs it have an Infeftment seing it hath but the effect of an Assignation to a Liferent It was answered that if the Father had expresly assigned his Liferent reserved in the base Infeftment it might have been the ground of a question whether the Assigneys Possessing so would have validat the base Infeftment But since the Father has not taken notice of the Reservation but Dispones as Heretor it clears that he did not Possess by the Reservation but by his own prior Right The Lords found the Reason of Reduction and Reply Relevant and that the Fathers Possessing by himself or Watsons Possessing by himself could not validat the base Infeftment Charles Cass contra Mr. Iohn Wat. Eodem die DOctor Cass having taken Infeftment of an annualrent out of the Lands of Robertland in name of Cockpen and Adam Wat Charles Cass as Heir to the Doctor pursues Mr. Iohn Wat as Heir to his Father for Compt and Reckoning of the Mails and Duties and Charges him with the hail Rental being intrometted or ought to have been intrometted with by him and his Father by vertue of the Trust in their Person and also Adam Wat took a gift of Tutory to the Pursuer and so is lyable as his Tutor The Defender answered that his Fathers Name being borrowed on Trust could lay no Obligation on him to do any Diligence but what he thought fit seing by his Back-bond he was obliged to denude himself whenever the Doctor pleased and the Pursuer has reason to thank him for what he did and not burden him with what he omitted seing he had no allowance therefore and as for the Tutory there was a multiple Poinding all the time thereof depending among five or six Parties pretending Right by the dependence whereby the Tutor was excluded The Pursuer answered that the Defenders Name was not borrowed without his knowledge but that he accepted thereof and entred to Possession and as an Appryzer is not obliged to Possess but if he Possess must be answerable for the Rents of the Lands conform to the Rental so must the Defender The Lords found the Defender not lyable to Diligence by vertue of the Trust albeit he did Possess but Ordained him to Compt for his intromission and to condescend what Diligence his Father did as Tutor that if he be found deficient therein there might be an additional Accompt to what he intrometted with Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666. MR. Iames Cheap charges Mr. Iohn Philip to fulfil a Minute of Alienanation of the Lands of Ormestoun sold by Mr. Iames to Mr. Iohn whereby Mr. Iohn was obliged to pay 25500 merks as the price or to assign sufficient Bonds therefore He Suspends and offers to Consign Bonds and amongst the rest a Bond of 8000 merks due by the Town of Edinburgh The Charger alleadged that he was not obliged to accept that Bond because at the time of the agreement and Subscription of the Minut the Charger particularly excepted the Town of Edinburghs Debt and the Suspender declared that it should be no part of the price which he offered to prove by the Writer and Witnesses insert in the Minute The Suspender answered that Witnesses were not competent in this Case where the words of the Minute are not dubious but clear and general of any sufficient Debt for if this were sustained the alteration of the price as well as the manner of payment might be proven by Witnesses It was answered that it was no way alike nothing being here in question but the manner of payment and not the quantity of the price The Lords Ordained the Writer and Witnesses to be Examined before answer Ianet Thomson contra Stevinson Eodem die IN the Reduction on Minority at the Instance of Ianet Thomson contra Stevinson The Lords Ordained the Pursuers Mother to be received Witness of her Age cum nota there being a Testificat already produced and there being 30 or 40 years since the Pursuers Birth after which time it was not likely that others would remember but she was ordained to Deponâ— who were Witnesses at the Birth and Baptism and these to be Examined Corstorphin contra Martines Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister in lecto It was alleadged by Martines to whom the Disposition was made that he could not quarrel the same because his Father to whom he is Heir and the other Brethren and Sisters of the Defunct had approven whatsoever Testament Legacy or Disposition made or to be made by the Defunct of her Goods and Gear Debts and sums of Money and others whatsoever that she had or should have the time of her Decease so that she having made this Disposition he cannot quarrel the same The Pursuer answered First That the Ratification in the Terms foresaid could not be extended to Lands or Annualrents Constitute by Infeftment there being no mention of Lands Annualrents or Heretage therein 2ly It could not be extended to any Disposition but Legally made and therefore not to Dispositions on Death-bed The Defender answered that the Ratification bearing expresly sums of Money did comprehend all sums although Infeftment of Annualrent were granted for security thereof which being but accessory to the sum follows the same 2ly There could be no other effect of the Ratification if it were not to exclude the Heir from quarreling thereof as being in lecto for if the same was made by the Defunct in her leige poustie it were valide and unquarrelable in it self and albeit it bear not mention of Death-bed yet it expresses Disposition of all Goods she should happen to have the time of her Death so that if she had acquired Rights after her sickness contracted she might Dispone the same validly by this Ratification and yet behoved to be on Death-bed The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed which was carried but by one Vote and so they came not to the second Point William Yeoman contra Mr. Patrick Oliphant Eodem die WIlliam Yeoman having apprized the Lands of Iames Oliphant Son to Sir Iames Oliphant and Mr. Patrick Oliphant having also appryzed the same William insists on this reason that Mr. Patricks appryzing was satisfied by Intromission within the legal Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing because the two part thereof did only belong to his Debitor and the third
before Declarator obtained as being rigorous and penal and so abiding the Lords Modification as well as Penalties in Bonds Modified of consent of Parties especially in this case where the performance is not of a single liquid sum but comprehends a general Clause of all Debts that were or should be after due The Defender answered that Clauses Irritant in Wodsets are not rejected by our Law but are valide only where Declarators are requisit The Lords may Reduce them to the just Interest of Parties before Declarator But here there needs no Declarator because the Defender is in Possession and may except upon the Clause Irritant committed and the Clause bears to be Effectual without Declarator and albeit this Clause could now be Reduced to the just Interest it is only this that seing Tullibardine hath sold the Land the Defender should give as great a price as it is sold for to Sir Iohn Drummond which the Defender is willing to do The Lords sustained the Order in so far as it is at the Instance of Tullibardine but not as to Sir John Drummond but prejudice to Sir John Drummonds Disposition They found also that this Clause Irritant might be purged now at the Bar or any time before Declarator which is always necessar though Renunced that medio tempore Parties may purge And the Lords inclined that Ochtertyre should have the Lands for the Price Sir John Drummond gave which is eighty eight thousand merks but upon Examining him and my Lord it appeared that my Lord had offered the Land to him re integra and that he had never been special as to so great a Price as this but only general that he would give as great a price as any other would give which they thought not sufficient seing any other thereby would be scarred from Bargaining Executors of Lady Pilton contra Hay of Balhousy Feb. 2. 1667. MR. Francis Hay granted a Bond to his Wifes Sister the Lady Piltoun bearing That for good Considerations he obliged him to pay her a 1000 merks yearly during her Life with this Provision that it should be Leisum to her to Employ the same for the Abuliaments and Ornaments of her Body or any other use she pleased and but any Right and Interest in her Husband thereto jure mariti her Executors do now pursue Balhousie as Heir for payment who alleadged-Absolvitor because he had payed to Piltoun her Husband and albeit it was provided that it might be leisum to his Wife to Dispose upon the sum yet she had not done it but the Husband had provided her with all Abuiliaments necessar It was answered that the Husbands jus mariti was excluded by Mr. Francis himself And whatever might be alleadged of what belongs to a Wife proprio jure that nothing more can remain with her but her necessary Aliment and all the rest being in the Person of the Wife doth return to the Husband jure mariti albeit the jus mariti were renunced in her favours yet the Right here is freely given by a third Party excluding the Husband which third Party might gift with what Provisions he pleas'd and his gift returns to himself unless these Provisions be observed and this must be thought to be a gift seing it bears no Cause onerous It was answered that it bears good Considerations and Expresses not to be a Gift or done for love and favour 2ly If the Gifter were opposing the Husband or his Creditors Right and making use of that Provision that his Gift might return seing the Provision was not keeped it might have weight but here the Donators Heir makes not use of the Provision but concurreth with the Husband and payeth him The Lords found the payment made by the Donator or his Heir to the Husband Relevant to exclude the Executors of the Wife Pourie contra Dykes Eodem die UMquhil Dykes having Subscrybed a Bond to Pourie of this Tenor That he acknowledged himself to be resting to Pourie 56 pounds yearly as the annualrent of a 1400 hundred merks which sum of 56 pounds he oblieged himself to pay yearly This was the Tenor of the Bond whereupon Pourie pursued Dykes his Successors not only for the payment of the annualrent but for payment of the principal sum of 1400 merks alleadging that she being but a simple Woman had entrusted Dykes with the drawing of the Bond and he had deceived her and not mentioned the payment of the principal but that the acknowledgement that the Annualrent was due as the Annualrent of 1400 merks behoved to infer that the 1400 merks was also due this Ticket being holograph without Witness there was no clearing of the meaning by the Witnesses insert Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses as she would use for clearing of the same She adduced an Instrument bearing Umquhil Dykes upon his Death-bed to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause and that it was through his neglect or unskilfulness all the Witnesses in the Instrument being now dead the Nottar and he who is mentioned as Procurator to have taken Instruments in the Pursuers Name were Examined both acknowledged that Dykes had exprest his mind in the matter before them but they were contrary in the particular the Nottar Deponed conform to the Instrument but the Procurator Deponed contrary that the woman had quite the principal sum and had taken her to the Annualrent The Lords having considered the whole matter And first Whether the Ticket could import that the principal sum was due They found neither by the Ticket nor by the Instrument that that could be Instructed They considered next Whether the Annualrent was due during the womans Lifetime only or as a perpetual Annualrent to her her Heirs or Assigneys The difficulty was that the Obligement bore that Dykes should pay the Annualrent yearly but did not express neither to her her Heirs nor Assigneys but simply in these Terms To pay the 56 pounds yearly Which the Lords found to carry a perpetual Annualrent though Heirs and Assigneys were not exprest Lady Traquair contra Marion Houatson Feb. 5. 1667. THe Lady Traquair pursues Marion Houatson for the Mails and Duties of a part of the Liferent-Lands who alleadged Absolvitor because her umquhil Husband who was immediat Tennent to the umquhil Earl had bona fide made payment to him Likeas the Defender being only Sub-tennent to her Son had bona fide made payment to her Son of her Duty The Pursuer answered that neither of the Alleadgances were Relevant because any payment that was made by the Defender or her umquhil Husband was before the Term of payment and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides neither could it prejudge the Pursuer The Lords were all clear that the payment made by the principal Tacks-man before the Term was not Relevant but as to the payment made by the
in before but superceeded Execution in the Removing as to the House and Mains Possest be Milntoun till Martimass that in the mean time he might Insist in his Reprobators as he would be Served Countesse of Carnwath contra Earl of Carnwath February 22. 1667. THe Countess of Carnwath Insists in her Action of Poinding the ground It was alleadged for the Defender that the Countess Seasing was null not being Registrate conform to the Act of Parliament It was answered that nullity cannot be proponed either be the Granter of the Infeftment or any Representing him or by any person who is obliged to acknowledge the Infeftments but the Earl is such a Person that albeit he Brooks by a Disposition from his Father yet his Infeftment containes this Express Provision that his Father at any time during his Life may Dispone the Lands or any Part thereof and grant Infeftments Tacks or Annualrents thereof so that this being unquestionably an Infeftment he cannot quarrel the same upon the not Registration but if his Father had granted an Obliegment to Infeft the Defender could not have opposed the same much more the Infeftment being Expede It was answered that the Provision did not contain an Obligation upon the Defender to Dispone Ratifie or do any Deed but left only a Power to his Father to Burden the Lands which can only be understood being done legitimo modo and therefore the Infeftment wanting the solemnity of Registration is in the same Case as if there were no Infeftment and so is null The Lords Repelled the Defense and found the Seasine valide as to the Defender in respect of the foresaid Provision in his Infeftment Earl of Southesk contra Lady Earls-hall Eodem die THe Earl of Southesk being Infeft in certain Lands upon the Water of Eden and the Salmond Fishing peruse Declarator that Earls-hall hath no Right thereto The Pursuer produces an Infeftment in Anno 1558. in which after the Land is Disponed there followes a Clause una cum Salmonum in piscationibus in aquâ de Eden with a novo damus it was alleadged for the Defender that he hath the â—like Declarator against the Pursuer which he repeats by way of Defense and produces an infeftment of the same year of God bearing in the dispositive Clause una cum Privilegio piscandi in aqua de Eden solito consuet and alleadges that by vertue thereof he hath good Right to Fish in the Water and that he had been in Immemorial Possession by vertue thereof It was answered First That this Clause cannot carry Salmond Fishing which is inter Regalia and must be specially Disponed 2ly The Defenders Right though in the same year of God is yet some Moneths Posterior to the Pursuers and as to the Defenders Immemorial Possession it cannot consist nor give Prescription without a sufficient Title by Infeftment and it hath been frequently Interrupted by the Pursuer It was answered by the Defender that he and the Pursuer and the Laird of Reiris having three Thirds of one Barony all lying Rin-ridge the Kings granting the Pursuer his Third cum Salmonum piscationibus added to the Lands as a Pendicle thereof it cannot be understood exclusive of the other two Third Parts of the same Barony likeas Reiris hath the same Clause in his Infeftment and albeit Earls-halls Clause be not so express yet it not being the common Clause in the Tenendas cum piscationibus but in the Dispositive Clause of this special Tenor it must needs comprehend Salmond Fishing or otherwise it would have no Effect verba autem interpretanda sunt cum effectu and albeit the Clause were dubious yet it hath been in long possession Immemorial which sufficiently Instructs the Accustomed Fishing to have been before the same 2ly As to the Anteriority of the Pursuers Infeftment the Defenders offers to prove that his Predecessor was Infeft before him with this Clause that is in his own Infeftment produced 3ly Albeit the Defenders Right were Posterior yet it is sufficient to give him a Joint Right to the Salmond Fishing with the Pursuer because he offers him to prove that he hath fourty years peaceably Possest the Salmond Fishing as the Pursuer hath when ever they were in the River The Lords found that the Clause in the Defenders Infeftment albeit it had been prior to the Pursuers could not give Right to the Salmond Fishing in prejudice of the Pursuers expresse Infeftment of Salmond Fishing unlesse the Defenders Infeftment had been clede with Immemorial and fourty years peaceable Possession which being so alleadged by the Defender the Pursuer offered to prove Interruption and therefore a Term was granted to either Party to prove Mr. Iohn Elies contra Wishart and Keith Eodem die MAster Iohn Elies having Inhibit Elizabeth Keith his Debitor she did thereafter acquire a VVodset of certain Lands within the Shire where the Inhibition was published and thereafter upon payment of part of the Sums the VVodset Right was Renunced pro tanto and the rest being Consigned there is now a Process of Declarator of Redemption wherein Mr. Iohn Elies Compears and produces a Declarator at his Instance for declaring the Sums of the VVodset to belong to him and alleadges no Declarator of Redemption till the whole Sums contained in the VVodset Consigned be given up to him without respect of the payment or Renunciation of a part because it being done after his Inhibition it was null and so is craved to be declared by his Declarator It was answered First That Inhibitions can reach no further then to the Lands the Person Inhibit had the time of the Inhibition but not unto Lands he should happen to acquire after the Inhibition because the Inhibition bearing that the person Inhibit should not Sell or Alienat to the prejudice of the User of the Inhibition albeit she should Sell what thereafter he acquired the User of the Inhibition were in no other case then when the same was published the Land being both gotten and gone thereafter and if that were the effect of Inhibitions every provident person would Publish and Registrat them in all the shires of the Kingdom because they can only reach Lands lying in the shire where they are Registrated which was never done neither was it ever Decided that Inhibitions reached Lands acquired thereafter 2ly Inhibitions can never hinder persons having Right of Reversion to pay the Sums and the Wodsetter to Renunce because Inhibitions only Restrain Debar and Inhibit to Sell c. But doth not hinder him to pay his Debt or upon payment of the Wodset Sums to Discharge the Sums and Renunce the Lands these being Deeds necessar to which he might be compelled and if this hold no man might saflie pay an Heretable Band having Infeftment of Annualrent without searching the Registes which the most cautious man never did and for this alleadged the expresse Opinion of Craig that Inhibitions hinder not Discharges of Heretable Sums or Renunciations of VVodsets It was
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
bare no Annualrent The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums for which they allowed him a year and that he was lyable for Annualrent after that year 2ly How soon a Tutor was obliged to do Diligence to uplift his Pupils Means so that if the Debitor became Irresponsable the Tutor was lyable The Lords found that if the Pupils Sums were in the hands of Debitors unquestionably Solvendo the Tutor was not obliged to lift the same unlesse the condition of some of the Debitors or Cautioners became worse at which time he was obliged to do all Diligence for uplifting the sums unlesse the Debitors became to be known to be altogether broken upon a sudden which he could not foresee 3ly VVhat Diligence a Tutor was obliged to do whether Horning was sufficient or if Captionâ— Poynding and Appryzing were necessary The Lords found that in different Cases different Executions were requisite viz. If the Debitor were known to have Lands appryzable or Goods poyndable or Sums arrestable that the Tutor was obliged to do Diligence accordingly and if not to use personal Execution 4ly Whether the Tutor should have allowance of such Sums as he payed without Sentence The Lords found such sums allowable unless a competent Defense could now be proponed which was known and probable to the Tutor at the time of payment Iohn Watson contra Iames Law Iuly 12. 1667. JAmes Law having Disponed certain Lands to Iohn Watson with absolute warrandice and after the Disposition there being a Designation of a part of the Land for Horse and Kines Grasse to the Minister conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse The Defender alleadged absolvitor because the distresse is by a subsequent Law falling after the Disposition It was answered first That absolute Warrandice does even take place in the case of a subsequent Law at least in so far as the Pursuer suffers detriment because if the Lands had continued the Defenders had been so burdened and therefore is lyable in quantum lucratus est 2ldy This is no supervenient Law because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof concerning Manses and Gleibs is declared to be valid as if it had been made in the year 1649. It was answered to the first that nothing can infer Eviction or Recourse but that which had a Cause anterior to the Warrandice unlesse it had been otherwise exprest Nor is it any ground that if the Disponer remained Heretor he had been lyable otherwise all other supervenient Burdens would Return not only upon the Immediat but upon all the Disponers but all such accidental Superveniencies are upon the Purchasers hazard as well as the Advantages are to his benefit To the second the time of this Disposition the Parliament 1649 was Rescinded and the new Act was not Enacted Neither by the new Act is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse but only as to the Manse It was answered that was but a mistake of the Draught of the Act of Parliament there being no Reason wherefore it should be drawn back as to Manses more then to the rest but it was the meaning of the Act of Parliament to Revive the former Act in all points It was answered that the meaning of Acts of Parliament may not be extended contrair to the words neither can any thing be supplyed that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly as to Manses which is adjected as a limitation could not be extended to the Ministers Grass which is statute in a different way in this then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money and in the former Lands were only to be designed therefore found the Distress that being by a supervenient Law that the Warrandice did not reach thereto Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667. SIr William Scot of Clerkingtoun having granted Assignation to his Daughter Margaret Scot of a Sum due by Wauchtoun Pursues Sir Laurence his Son as Haver to deliver the same It was alleadged for the Defender that there was a Clause in the Assignation reserving a power to Sir William to alter and Dispone during his Life and that he did Assign this Bond to Iohn Scot. It was answered that he took a Back-bond from Iohn Scot bearing that the Assignation was granted in Trust to this effect only that Iohn Scot should do diligence thereupon It was answered that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot his Heirs and Assigneys whereby the Assignation is altered The Pursuer answered that there appears nothing of the alteration of the Defuncts mind more then if he had appryzed in his own name whereby the Bond would have been adjudged to him his Heirs and Assigneys which is no more then if an Assigney should use the name of the Cedent which would no ways infer that by adjudging Land to the Cedent and his Heirs they pass from the Assignation The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond which also bare the Right to John Scot was made to do Diligence and for no other end Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith Iuly 16. 1667. THis Cause at the Instance of Mr. Iohn Eleis against Keiths being Dispute the twenty seventh of February last The Lords found Inhibitions to reach Lands Acquired after the Inhibition but superceeded to give answer to that Point whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands which being now Debated It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt and accept of a Renunciation from the Person Inhibit because a Renunciation is but a Discharge and Inhibitions were never found to take away Discharges of Heretable Bonds nor to hinder any Party to pay their Debt but on the contrair It was an universal Custom over all the Kingdom that Debtors should pay their Debts and did accept Discharges and Renunciations without looking into the Registers which hath been most frequent not only in Wodsets but mainly in Infeftments of Annualrent upon Heretable Bonds which no man ever doubted to pay till he searched the Registers of Inhibitions et communis consuetudo pro lege habetur It was answered first That the Inhibition bears expresly a Prohibition to grant Renunciations but no Prohibition to grant Discharges and as to the Custom it cannot be showen that persons did pay Wodsets and take Renunciations from these that were Inhibit much lesse that the Lords by their Decisions did approve
the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâ—s by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâ—ed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her liferent-Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâ—io jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
at all probable by Witnesses The Lords found the Disposition null and that the subscription of these two Notars not bearing that it was by Command could not be supplied by the Witnesses insert unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar whose Subscription bore Command Here it was Debated whether the Subscriptions of Notars at divers times were sufficient or if the Subscription of a Notar who was not authorized by the English and did forbear to Act at that time were sufficient but the former Vot made these to be undecided as not necessar seing the Writ was annulled by the former Vot Sir George Prestoun contra Sir Iohn Scot Iuly 1667. SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks out of Sir Iohn Prestouns Lands he alleadged payment thereupon Liâ—â—scontislation being made he produces three Receipts each 500 pounds bearing to an Accompt and alleadged that the odd fifty Merks was for publick Burden which compleating three years must Assoilzie from bygones It was answered the Discharges bore to be but granted by a Factor which was not probative and that they wanted Witnesses and that being given by a Factor they could not infer payment of all proceeding It was answered that Discharges of Annualrents or Rents are sufficient without Witnesses The Lords found that Discharges to Tenents were suffiâ—ient without Witnesses but not being granted by an Annualrenter to an Heretor and found that the Factors Discharge could not inâ—er payment of bygones The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die CAptain Seatoun a Privateer having taken a Ship at Sea she was declared Pryze at Cromarty the Owners pursue Reduction of that Decreet before the Admiral at Leith who Assâ—â—â—zied from the Reduction and adhered to the Dâ—creetâ— the Owners now pursue a Reduction of both these Decreets upoâ— this Ground that by the Treaty betwixt the King and the King of Sweden it is expresly declared that if any Swedish Ships having a Passe from the Kings Council or Colledge of Trade or Governour of the Province where frae she Louseth she shall not be questioned nor any Inquiry anent the Goods or Men and that because by the said Treaty it is Agreed that the said Passes shall expresly contain that the Ship and whole Goods belonging to the Subjects of Sweden contained no Counterband Goods and that upon Oath taken at the obtaining of the Passe na est the Governour of Livinia wherein Riga lyes hath given a Passe bearing that the Owners of the Ship called the Castle of Riga being Citizens of Riga did make Faith that Ship being then at Amsterdam did truely belong to them and was Loaded with their Goods only and was direct to France for a Loading of Salt to be returned to Riga and that there is produced an Extract out of the Admirality of â—rance bearing Faith to have been made that the Ship nor Goods nor any part thereof did not belong to the French nor Hollanders and a Certificat from the Swedish Resident in Holland Registrat in the Office of Admirality in England bearing this Ship to be a ship belonging to the Swedes and yet she was declared Pryze upon this ground only that the Sea-men did acknowledge they were Inhabitants in and about Amsterdam and that some of them Deponed that the ship was a Dutch bottom and one of them Deponed that they were paved by the Skipper who received the Money from a Water Bailzie in Amsterdam without proving that the ship or goods belonged to Hollanders which could not have been ground seing the Passe and Treaty did Exeem them from giving an Accompt or Inquiry anent their Mariners It was answered for the Defenders that all these Passes and Papers were a meer Contrivance and â—alls not in the Case of the Treaty because the ship Loused not from Riga but from Amsterdam and the Pass did not contain the particular Goods and Quantities according to the Conditions of the Treâ—ty and that the Testimonies proved that the ship had on a Dutch Flag that she came hot by the Channel but about the Back side of England and that the Company was afraid to meet with Scotish and English Privateers and having met with a ship in their Course asked for the Dutch Fleet calling it their own Fleet all which were strong Evidences that the ship belonged to Holland It was answered that albeit the Pass mentioned not the particular Goods which it could not do the ship being but to be Loaden the Certificat did abundantly supply that expressing the Loading as for the presumptions they are of no force because the Skipper though a Dutch-man yet was sworn a Citizen of Riga and might justly be more afraid of the English and Scots then of the Dutch and they might call the Dutch Fleet their own Fleet as being of their Nation at last they produced a Letter of the Kings bearing that His Majesty knew by sufficient Information that this was a ship belonging to Sweden and both by it and by a former Letter did peremptorly Command the Delivery thereof and the Goods It was answered the Kings Letter was impetrat upon false Information and if His Majesty had known the true state of the Case as it now stands in the Evidence He would not have so Written nor doth His Majesties Letter granted inaudita parte prejudge the privat Rights of his Subjects The Lords found that the Testimonies of the Witnesses did not prove that the ship and goods belonged to any of His Majesties Enemies and therefore in respect of the Pass Certificat Treaty and His Majesties Letter they Reduced both the Decreets Iuly 31. 1667. THis Cause being again Debated it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter there was no ground to proceed thereupon because it was granted inaudita parte and Acts of Parliament being done by His Majesty without consent of of Estates prejudge no party as to their privat Right but such as are called much less Letters thus impetrat upon importunity and groundless Representation and this Letter is Derogat by a posterior general Letter to the Lords Recorded in the Sederunt warranding the Lords to proceed And as to the Swedish Treaty it can never be understood further then as to Counterband Goods which are the Native Commodity of the Swedish Dominions for albeit some of these be dispensed to the Swedes because most of the Growth of their Countrey is such yet it cannot be extended to this Case where the Swedes Loadned Counterband Goods in Norway and carry them to France both being His Majesties Enemies neither can the Pass be sufficient except as to such ships as are within Sweden and where the particular Goods upon Oath are Attested and expressed in the Pass neither of which is in this Case It was answered that they opponed the former Interlocutor and that a solemn Treaty with so considerable an Allie
sisti but also judicatum solvi that he may be ordained to do the same before the Lords Which the Lords refused but granted the Advocation in common form Sir Robert Montgomery contra Alexander Rankein November 23. 1667. SIr Robert Montgomery having obtained Decreet against Antonia Brown as representing Sir Iohn Brown her Father for two thousand Merks Arrests the price of a chain due to Antonia in the hands of the Lord Melvil and pursues to make forthcoming Compears Alexander Rankein and produces a Decreet obtained against Antonia and thereupon an Arrestment by the Sheriff of Fifes Precept and a Decreet of the Sheriff thereupon in July last the Arrestment being in the same Moneth and craves preference because he had the first compleat Diligence It was answered that Sir Robert having first Arrested in March last and first intented Processe thereupon before the Lords and having insisted therein the last Session was kept off by the compearance of the Lady Cullerny who also pretended Right to the Chain and has failed in no Diligence and therefore ought to be preferred to a posterior Arrestment albeit it have the first Decreet of an inferiour Court both Arrestment and Citation being after his for he having affected the Sum by an Arrestment the matter became litigious and no posterior Diligence nor Sentence of an inferiour Court could exclude him he using all Diligence before the Supream Court and not living within the Sheriffs Jurisdiction and the Sheriffs Decreet being only in absence otherwise no Process upon any Arrestment before the Lords can be secure but others may anticipat them by obtaining Decreets before inferiour Courts which are far sooner obtained It was answered that it was not the Arrestment but the Sentence to make forthcoming that transmitted the Right as being a Judicial Assignation and therefore the first Decreet is preferable for as Poinding might have been used upon the Sheriffs Precept notwithstanding of a prior Arrestment and Dependance before the Lords so must the Sheriffs Decreet which is equivalent have the same effect and Sir Robert ought to impute it to himself that took not the shortest way in pursuing before the Sheriff The Lords found the first Arrestment pursued before themselves sine mora and the first Citation preferable to a posterior Citation and Arrestment though obtaining the first Decreet and therefore preferred Sir Robert Montgomery and would not bring in the Parties pari passu the first Arrestment and Citation being several Moneths before the other Lord Iustice Clerk contra the Laird of Lambertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods and Planting in the beginning of the Troubles the Parties did agree that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde the one half thereof should be payed by Lambertoun The Lords granted Commission to five of their Number who Examined Witnesses upon the place three of the Pursuers Witnesses proved the half of the Damnage to be eleven thousand Merks and gave clear Reasons of their knowledge two of them were used by the Defender also and two or three of the Defenders other Witnesses Deponed that the whole Damnage was about two thousand Merks and a third ex auditu agreed in some points At the Advising of the Cause the question arose whether the Lords might modifie betwixt the two Extreams or if they ought to Judge according to any two of the highest Testimonies or according to the most pregnant Testimonies giving the clearest ground of their Knowledge The Lords found the most pregnant Testimonies to be the Rule and Decerned according to the least that the Pursuers Witnesses did prove as being that wherein all did agree and not according to the most quantities that some proved Mr. Iohn Hay of Haystoun contra Mr. Iohn Drummond and Patrick Hepburn November 26. 1667. MAster Iohn Hay having pursued a Reduction of the Rights of some Lands against Mr. Iohn Drummond and called for the Rights made to him by Umquhil Patrick Hepburn Mr. Iohn Drummond got three Terms to produce reserving his Defenses and at the last Term alleadged no Certification against the Rights granted by Patrick Hepburn because none to Represent Patrick Hepburn were called a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn whereupon he Cited Patrick Hepburn his eldest Son and appearand Heir who having gotten one very short Term and that circumduced against him It was now alleadged that all the Terms ought to be granted to Patrick Hepburn seing he was a Party necessar to be called and his Rights were to be Reduced The Pursuer answered that this being a single Reduction de jure there was no more due but one Term. 2dly Albeit more were due yet Mr. Iohn Drummond having run three Terms already he can crave no more but one upon the account of Patrick Hepburn his Author The Lords in respect the Term Assigned to Patrick Hepburn was but on six dayes allowed him a second Term and ordained it to be Intimat by the Ordinar to the Advocats that in single Reductions of Rights of Lands they would grant two Terms for production and in Reductions and Improbations three only Captain Bood contra George Strachan November 28. 1667. CAptain Bood Captain of one of His Majesties Friggats pursues George Strachan who had Commanded that Friggat for a time and was sent a Voyage therewith from Brassie-found to London to restore a part of the Out-reick of the Ship which he had not Delivered but had excepted in his Discharge as being worn stollen or lost and now it was offered to be proven that he Sold and Disponed upon the same particulars he so reserved The Defender alleadged Absolvitor from such particulars as he condescended upon because he did waire out a considerable Sum of Money fot Repairing the Out-rige and necessars to the Ship during the Voyage for which in case of necessity he might have Sold a part of the Out-rige 2dly Albeit he might not have Sold the same yet he may retain or compence the price thereof with what he waired out necessarly and profitably for the Out-rige of the Ship 3dly He offered him to prove that such parts of the Out-rige in questionâ— as he should condescend upon were worne and stollen which being his Defense he ought to be preferred in the Probation unto the Pursuer who ought to have no other Probation against him being a Person Intrusted but his own Oath much less a contrair probation by Witnesses that they were not Lost but Disposed upon by the Defender The Lords Repelled the first and second Defenses and found that albeit the Captain might have Hypothecat his Ship or Out-rige for the necessar Expences waired upon her yet that he could not Sell the same and that de facto he did not Sell the same because the Pursuer offered to prove he Sold them at Lieth after his Return and found the same probable by
Witnesses and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true â—f the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâ—ld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâ—ch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
contra the Magistrats of Queens-ferry Ianuary 2. 1668. ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry and being Charged to Accept and Exerce the Office Suspends on this Reason that by the 29. Act Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year and by a particular Act of that Burgh no Magistrat is to continue above two years and true it is that the Suspender hath served as Baillie two years already It was answered that the Act of Parliament is long since in desuetude and as to the Act of the Burgh the Election of the Suspender being done by them who have power to make that Act is in effect an alterationt hereof and this Burgh being poor and penury of persons to Serve it will dissolve the same and discourage all others to Serve if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantâ—â— and found that the Suspender could not be compelled to serve longer then one year at once in the same Office Dow of Arnho contraâ— Campbel of Calder Ianuary 4. 1668. DOw of Aricho having pursued Campbel of Calder as Heir to his Father for payment of a Bond wherein his Father was Cautioner for the Marquess of Argyl the Bond bore but one Witnesse to Calders subscription and George Campbel one of the Witnesses being Examined if he saw him subscribe Deponed negative but that it was Calders hand Writ to the best of his knowledge there was also other writs produced subscribed by Calder to compare the subscriptions The Lords would not sustain the Bond having but one Witnesse insert to Calders subscrsption upon the foresaid Testimony and Adminicles Mr. Iohn Forbes contra Innis Ianuary 1. 1668 MAster John Forbes as Assigney to Margaret Allerdes having obtained Decreet of Removing against Margaret Innis for Removing from the Lands of Savet wherein the said Margaret Allardes is Infeft in Liferent which being suspended It was alleadged first That this pursuâ—e is to the behove of Margaret Allerdes who could not obtain a Removing against the Defender because the Defenders Husband being Infeft by the said Margaret Allardes Husband and Author of the Lands of Savet principally and of the Lands of Govan and others in Warrandice The said Margaret Allardes did consent to the Disposition of the Warrandice-lands by which she obliged her self to do no Deed in the contrair of that Right and is also bound in Warrandice with her Husband ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands in so far as thereby the Person having Right to the principal Lands upon Eviction recurrs upon the Warrandice-lands and so the Consenters own Deed prejudges the same It was answered that by Deeds contrair to Warrandice were only understood some Right granted by the Disponer or Consenter in prejudice of the Right consented to but no wayes a pursute upon any other Right of the Consenter for it were against Reason and Justice that a Purchaser to make himself secure requiring a Wifes consent to Lands to which she had no Right either Principal or in Warrandice of other Lands that her Consent should prejudge her as to her Liferent lands of which there was no mention and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft it is null and can never oblige her being a Wife The Lords found that this Warrandice did not oblige the Wife and that her Consent did not hinder her to pursue upon her own Liferent albeit ex consequente her pursute excluded one having a posterior Right to her Liferent-lands who thereupon had recourse to the Warrandice-lands to which she Consented seing she had granted no Right prejudicial to the Right Consented to It was further alleadged that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands principally that she should accept the Warrandice-lands in stead of her Liferent-lands which excambion putting the Right of the Warrandice-lands now in her Person she who consented to the Right thereof can never come in the contrair of her own Consent to prejudge the same It was answered that a Consâ—nt cannot exclude any supervenient Right of the Consenter but only such Rights as the Consenter had the time of the Consent it is true that a Disponer with absolute Warrandice if he acquire a Right it accresces to his Successor but it is not so in a Consenter whose warrandice is not found to be Obligator further then as to the Rights in the Consenters Person at that time Which the Lords Sustained It was further alleadged that the Pursute as to the behove of the Heir of the Disponer of the Lands in question whose Predecessor being bound in absolute Warrandice he can make no use of no Right prejudicial to his Warrandice 2dly Albeit he be not Heir yet he hath behaved himself as Heir and thereby is lyable to fulfil the Defuncts Warrandice and so cannot come against it It was answered that behaving as Heir being a vitious passive Title is not sustainable by way of exception in this case The Lords Sustained the same and found both members of the alleadgeance relevant Margaret Forbes contra 〈…〉 Eodem die MArgaret Forbes having granted a Tack of her Liferent-lands to 〈…〉 bearing expresly for payment of such a Sum of Money and bearing to endure for 19. years she did receive a Back-bond of that same Date bearing that so soon as the Sum was payed the Tack should become void the Tack coming to a singular Successor she pursues him for Compt and Reckoning and Removing and insists upon the Tenor of the Tack and Back-bond It was alleadged for the Defender that the Back-bond did not militat against him being a singular Successor neither being Registrat nor Intimat to him before his Right in respect the Tack is a real Right and no Obligement or Provision of the Tacks-man can prejudge a singular Successor The Lords Repelled the Defense and Sustained Processe against the Defender in respect of the Tack and Back-bond The old Lady Clerkingtoun contra Clerkingtoun and the young Lady Ianuary 9. 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual out of the Mains of Clerkingtoun for thirty six years bygone she pursues a Poinding of the ground It was answered for the Laird and his Mother that the Pursuer having been so long out of Possession cannot make use of a Possessory Judgement but must first declare her Right 2dly The young Lady is also Infeft in an Annualrent and hath been by vertue thereof more then seven years in Possession and so hath the benefit of a Possessory Judgement till her Right be reduced and cannot be Dispossest by the old Ladies posterior Infeftment The Lords Repelled both the Defenses and found that an Annualrent is debitum fundi and is not excluded by Possession of a posterior Right and needs no Declarator and
payment of a Debt due to him by a Person Incarcerat in their Tolbooth who escaped The Defenders alleadged no Processe till the Magistrats who then were especially Bailly Boyd by whose Warrand the Rebel came out be called 2dly The present Magistrats cannot be lyable Personally having done no Fault neither can they be lyable as representing the Burgh at least but subsidiarie after the Magistrats who then were in culpa were Discussed now after six or seven years time The Pursuer answered that the Prison being the Prison of the Burgh the Burgh was lyable principaliter and if only the Magistrat doing the Fault were lyable the Creditor might oftimes loose his Debt these being oftimes of no Fortune or sit to Govern and the Town who Choiseth them is answerable for them neither is the Pursuer obliged to know who were Baillies at that time or who did the fault and so is not bound to Cite them The Lords Repelled the Defences and found the present Magistrats as representing the Town lyable but prejudice to them to Cite them who did the Fault Robert Ker contra Henry Ker February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son for 3000. Merks of borrowed Money and 3000. Merks of Portion for which Sum he did Infeft him in an Annualrent of 240. Pound yearly Suspending the Payment of the one half of the Annualrent till his Death whereupon Robert pursues a Poinding of the Ground It was alleadged for Henry Ker the eldest Son who stands now Infeft in the Lands Absolvitor because he stands Infeft in the Lands before this Infeftment of Annualrent being but base took effect by Possession The Pursuer answered first That the Defenders Infeftment being posterior and granted to the appearand Heir without a Cause Onerous it is perceptio Haereditatis and if the Father were Dead it would make the Defender lyable as Heir and therefore now he cannot make use thereof in prejudice of the Pursuer 2dly The Pursuer offered to prove that his Annualrent was cled with Possession before the Defenders Infeftment in so far as he Received the half of the Annualâ—ent which is sufficient to validat the Infeftment for the whole seing there are not two Annualrents but one for the whole Sum and seing the 〈◊〉 could do no more the one half of the Annualrent being Suspended till his Fathers Death The Lords found this second Reply relevant and found the Possession of the half was sufficient to validat the Possession for the whole but superceded to give answer to the former Reply till the conclusion of the Cause not being clear that the Defense upon the Defenders Inseftment could be taken away summarly though he was appearand Heir without Reduction upon the Act of Parliament 1621. Mr. George Iohnstoun contra Sir Charles Erskin February 6. 1668. THe Lands of Knockâ—â—â— being part of the Lands of Houdon did belong to Umquhil Richard Irwing Umquhile Mr. Iohn Alexander Minister having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands he did Appryze the same from Robert as specially Charged to enter Heir but Robert died before he was Infeft or Charged the Superior Sir Charles Erskine hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands and thereby having Right to Mr. Iohn Alexanders Appryzing he is Infeft thereupon After Robert Irwings Decease his Sisters served themselves Heir to Richard their Grand-sir and are Infeft do Dispone to Mr. George Iohnstoun who is also Inseft Mr. George pursues for Mails and Duties in the Name of Irwings his Authors Compearance is made for Sir Charles Erskine who alleadged Absolvitor First Because he hath been seven years in Possession of the Lands in question by vertue of Mr. Iohn Alexanders Appryzing and his own and so is tulus exceptione in judicio possessâ—rio and cannot be quarrelled till his Right be Reduced 2dly He is potior jure and his Right must exclude the Pursuers because he having Right to Mr. Iohn Alexanders Appryzing which was Deduced against Robert Irwing as specially Charged to enter Heir so Richard as to him is in as good case as Robert had been actually Entered and Infeft by the Act of Parliament declaring that when Parties are Charged to enter Heir and lyes out sicklike Processe and Execution shall be against them as they were actually Entered likeas the Tenor of the special Charge introduced by Custom to perfect the foresaid Act of Parliament bears expresly that the Person Charged shall enter specially and obtain himself Infeft with Certification that the user of the Charge shall have the like Execution against him as if he were Entered and Infeft and therefore Mr. Iohn Alexanders Appryzing against Robert Iâ—wing so Charged was as effectual to him as if Robert had been actually Infeft in which case there is no question but the Appryzer might obtain himself Infeft upon the Appryzing after the Death of him against whom he Appryzed and that summarly without new Processe and there is no difference whether the Superior were Charged during the Life of the Debtor or not The Pursuer answered to the first that no Party can claim the benefit of a Possessory judgement unlesse he have a real Right by Infeftment at least by Tack but a naked Appryzing thoug it may carry Mails and Duties as a naked Assigation and is valide against the Debtor or his Heir â—et in it self it is an incompleat Right and not become real It was answered that the Appryzing alone was sufficient as was lately found in the Case of Mr. Rodger Hog against the Tennent of Wauchtoun The Lords repelled the first Defense and found there was no grond for a Possessory judgement here there was neither Infeftment nor Charge upon the Appryzing The Pursuer answered to the second Defense that it was not relevant to exclude him because Richard Irving having Dyed last vest and seised in the Lands and Robert Irving never having been Inâ—eft the Pursuers Roberts Sisters who were Heirs appearand buth to Richard their Grand-sir and Robert their Brother could not possibly obtain themselves Infeft as Heirs to their Brother becuse the Inquest could not find that Robert Dyed last vest and seised as of Fee but Richard and any Appryzing against Robert who was never Infeft evanished seing no Infeftment was obtained upon the Appryzing nor no Charge used against the Supperior during Roberts Life so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard and ought to have Appryzed from them as lawfully Chaged and to have obtained Infeftment upon the Appryzing in their Life and as the Sisters would exclude the imperfect Diligence against the Brother so much more may Mr. George Iohnstoun who is their singular Successor It was duplyed by the Defender that Mr. George Iohnstoun albeit he be singular Successor yet he is Infeft after Sir Charles Erskin and therefore the question now is only betwixt
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ— put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâ—ar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books â—nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nâ—t for the Damnage and Interest neâ—â—her against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ— first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâ—ved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
Pursuers licence he could give licence to no other Mr. Iohn Forbes contra Innes February 20. 1668. MAster Iohn Forbes insisted in the Cause against Margaret Innes mentioned in the 8th of Ianuary last for Mails and Duties as Assigney by Margaret Allardice who being Infeft in Liferent in principal Lands and Warrandice Lands and the principal Lands being evicted she and the Pursuer her Assigney returns upon the Warrandice Lands wherein Margaret Innes is Infeft in Liferent by her Husband who stood publickly Infeft therein upon the Resignation of Margaret Allerdices Husband and who alleadged Absolvitor because the Defender and her Husband being Infeft and in Possession these 20. years past have the benefit of a Possessory judgement and so cannot be put from her Possession till her Right be Reduced The Pursuer answered that the benefit of a Possessory judgement can take no place against a pursuit upon an Infeftment in Warrandice unlesse the Possession had been seven or more years after the Eviction for before the Eviction there could be no Pursuit upon the Infeftment of Warrandice in the same case as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime when the Wife could not pursue The Defender answered that the Pursuer ought in a petitory judgement to have declared the Distresse before he could put the Defender from her Possession The Pursuer answered there was no Declarator required but only the Eviction which gives immediat recourse upon the Warrandice Lands The Lords repelled the Defense and found no need of a Declarator or Reduction to attain recourse and that a Possessory judgement was not compent upon any Possession anterior to the Eviction The Defender further alleadged Absolvitor because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice which is base holden of her Husband and the Defender and her Husbands Infeftment are publick holden of the Superior and albeit posterior to the Infeftment of Warrandice yet is preferable the Infeftment of Warrandice being base never cled with Possession The Pursuer answered that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands especially now when all Seisings must be Registrat as was lately found in the Case of Iohn Scot and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death but her Husband was in full Possession of both which is more then sufficient The Pursuer answered that in Scots Case this was singular that in Iohn Scots Case both the Principal and Warrandice Lands were granted in an Infeftment and so the Person Infeft being in Possession of the principal Lands his Infeftment could not be partly publick and partly privat but this Infeftment in Warrandice is ex intervallo The Lords repelled also the Defence and found the Infeftment in Warrandice though base sufficient the Person Infeft being in Possession of the principal Lands albeit the Infeftment in the Warrandice Lands was ex intervallo Farquhar of Tonley contra Gordoun Eodem die FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion It was alleadged Absolvitor because he had Homologat the Bond in so far as he being Cautioner in the Bond he had pursued releif and obtained Decreet for releif which did necessarly import that he acknowledged himself bound else he could not have craved releif The Pursuer answered that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him against which he could have no objection for the benefit of Reduction upon Minority is peculiar to the Minor himself and no other can make use of it and in his pursuit of releif he might very well have declared that in case he obtained not releif against the principal Debitor he might free himself by Reduction against the Creditor so that Homologation being a tacite consent can never be presumed where the Deed done might have another intent and his pursuit for relief was not to bind himself but to louse himself he did also alleadge that the pursuit of releif was at his Fathers instance and his own promiscuously and after the Decreet was thereupon extracted he gave it in again and took a new Extract which bears not a releif for him of this Debt The Lords found the Pursuit and Decreet of releif to be no Homologation to exclude this Reduction The Defender then offered him to prove that the Pursuer was Major when he Subscribed so that the Lybel and Defence being contrary and great advantage arising to him who had the benefit of Probation by Highland Witnesses The Lords resolved to prefer neither to probation but before answer ordained to adduce such Evidents and Adminicles as they would use to prove the Pursuers age that they might prefer the strongest and clearest Probation Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament and having obtained licence to pursue pursues the Lady Clerkingtoun as principal Executrix who alleadged no Processe upon the licence because licences are only competent to Executors principal before there be any Confirmation after which the Commissars neither use nor may give licence ad omissa as was found the 14. of December 1621. Halliday contra observed by Dury The Pursuer answered that there was more reason to sustain licences after the principal Confirmation when the best of the Inventar was given up and what remained was uncertain and for the practique the Lords had since allowed licences after Confirmation The Lords repelled the Defense and Sustained the Processe upon the licence Bartholomew Parkman contra Captain Allan Eodem die CAptain Allan a Privateer having taken Bartholomew Parkman an Swede he obtained him to be Declared Pryze by the Admiral upon this ground mainly that he had carried Tar being Counterband Goods from Norway to Holland then in Enmity with the King and from thence carried ballast to France and returning with a Loadning of Salt was taken because by the Captains Commission from the Admiral he was warranted to to take Ships carrying Counterband Goods or to take the saids Ships in their immediat return after they have carried Counterband Goods to the Kings Enemies which hath always been the Custom of Scotland as appears by Commissions granted by the Admiral Anno 1627. of the same Tenor and by a Decreet of the Admiral at that time finding the Lybel relevant bearing that a Ship was taken in her return having taken in Counterband to the Enemy in that Voyage which is founded upon evident reason because that while Ships are going towards the Enemy it is but an intention of Delinquence against the King and assisting his Enemies but when they have actually gone in and sold the Counterband it is delictum Commissum and though it might infer a quarrel against the Delinquent
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâ—ty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
exclude probation of Super-intromission and there being two Compts produced the Charge of the last Compt is the rest of the former Compt and the Oath relates only to the last Compt. The Lords Repelled the Defense upon the Act of Pacification which they found was only unrescinded in so far as it is contained in the late Act of Indemnity and Repelled the Defense upon the Act of Indemnity in respect of the Exception and found that the Father had not Counted duly for his whole Intromission and that his Oath extended only to the last Compt and having considered the Testimonies of the Witnesses they made a difference betwixt what umquhil Lamertoun applyed to his own use and what Corns and Cattel were carried away by Souldiers by his direction to the Army that he might be free of the latter and lyable for the former Iohnstoun of Sheins contra Isobel Arnold Iuly 22. 1668. IAmes Arnold having granted a Bond of Provision to his Daughter Isobel became afterwards Debitor to Iohnstoun of Sheins who Appryzed Arnold's Estate in Anno 1638. upon a Debt of his own and as Assigney to another Debt Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands Sheins conies in Possession of the most part and Isobel in a small part till they both acquire the benefit of a Possessory Judgement whereupon there are mutual Reductions Sheins Reason was that his Fathers Appryzing was long prior to the Defenders and that the ground of the Defenders Appryzing was only a Bond of Provision by a Father to his Daughter which could never exclude the Fathers Creditors especially if that Debt was contracted before the Bond of Provision was granted and while it remained in the Fathers Custody and so in his power to be Reduced at his pleasure Isobels Reason of Reduction was that albeit Shein's Appryzing was prior yet there was no Infeftment thereon in Shein's person bearing to be on an Assignation to the Appryzing by Shein's to Collingtoun but any Infeftment produced is in Collingtouns Person bearing to be on an Assignation to the Appryzing by Sheins to Collingtoun which Assignation is not produced and so Shein's Infeftment flowing from Collingtoun is null because Collingtouns Right from Umquhile Shein's is wanting which is the mid-cuppling 2dly Shein's Appryzing being on two Sums the one whereof was to the behove of a Cautioner who had payed the Debt and taken the Assignation in Shein's Name to his own behove which Cautioner being conjunct Cautioner with Iames Arnold the common Author and having a Clause of relief neither he nor Shein's intrusted by him could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum but behoved to deduce the other Cautioners part and so the Appryzing is upon invalide grounds and thereby is null and albeit prior to Isobel Arnold's Appryzing yet she has the only valide Appryzing It was answered for Shein's that the first Reason was not competent to the Pursuer for it was jus tertij to her what progresse Collingtoun had from Umquhile Shein's seing she Derives no Right from him 2dly This Collingtoun by his Right granted to this Shein's acknowledges that aborigine the Infeftment in Collingtoun his Fathers person was to Shein's behove which is a sufficient Adminicle in place of the Assignation and to the second Reason albeit it were instructed it could not annul the Appryzing in totum but restrict it to the Sum truly Due especially seing that Shein's was content to declare his Appryzing Redeemable by payment of the Sums truly Resting within such times as the Lords would appoint and albeit the Lords are strict in the Formalities of Appryzings when they are expired and carry the whole Estate though improportional yet during the legal they allow them in so far as they are due The Lords found Isobel Arnolds first Reason Competent and Relevant to her unlesse Collingtouns Assignation were produced or the Tenor of it proven and found the second Reason Relevant to restrict the Appryzing to the Sum truly due in respect that Shein's did of Consent declare it yet Redeemable for the true Sums But they found Shein's alleadgeance that the ground of Isobel Arnolds Appryzing was a Bond of Provision posterior in Date or Delivery to Shein's Debt Relevant to prefer him as a Conjunct Creditor for his true Debt though the Assignation should not be produced a new one from Collingtoun being sufficient Iohn Boswel contra the Town of Kirkaldy Eodem die IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy and some Houses in the Town but not dwelling within the Town or Paroch nor using any Trade therein pursues the Town as having unwarrantably Stented him for his Stock and Trade he not dwelling in their Burgh 2dly For unequal Stenting him as to his Lands 3dly For Stenting him for the Towns Debts as for the Sums payed for their Erecting Harbours and some Teinds they Bought 4thly For Stenting him for the second Ministers Stipend whereas he payed the whole Teind to the first Minister nor dwelt he in the Paroch nor consented to a second Minister or to his Stipend and for unwarrantable Quartering on him and his Tennents and this since the year 1644. It was answered for the Defenders that they denyed Stenting of the Pursuer for any Stock or Trade seing he was no Inhabitant or that they Quartered on him unwarrantably but alleadged there was now no ground after so long a time to quarrel the inequality of their Stent Rolls which were made by fifteen sworn Men especially after so long a time for this preparative would be the foundation of a Debate at the instance of every Burgess against every Town in Scotland neither could there be a clear Rule as in Valuations but behoved to proceed by the Stenters Conjecture according to the common esteem of the Means and Trade of every Burgess so that unless the Complaint were against the inhability of the Stenters in due time made there could be no Debate thereafter And further alleadged that for the Towns Debts that such as were contracted for the common benefit of the Town for getting their Erection and Harbour and for the second Ministers Stipend the half of which had been payed by the whole Heretors since the year 1613. and the other half since the year 1649. that their new Kirk was Erected should burden the Pursuer proportionally according to his Land Rent The Pursuer answered that he not being an Inhabitant was not concerned in the Erection or Harbour nor in the second Ministers Stipend seing he payed his whole Teind to the first Minister The Lords found the Pursuer lyable for the half of the Stipend in regard of the immemorial use of payment but found him free for what he had not payed of the other unless it had been imposed by Authority or his own Consent and also found him free of the Personal Debt and would not Sustain Process against the inequality of the Stent Roll after so long a
time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses Deponed
to be led ten years after his Commission and now having taken Right to the Appryzing himself he cannot therewith Exhaust the price especially against this singular Successor having acquired bona fide after a Decreet of Suspension in foro contradictorio when the Defender had Right to the said third Appryzing and alleadged nothing thereupon The Defender answered that he cannot be Excluded from his Defense by the Decreet of Suspension as being competent and omitted the time of that Decreet because Competent is only Relevant against Decreets in ordinary Actions but neither in Reason nor Custom is the same Relevant against Decreets of Suspension there being this evident difference that in Decreets of Suspension the Reasons must be instantly verified but in ordinary Actions there are Terms assigned for proving Defenses and so it hath ever been practised by the Lords The Pursuer answered albeit it was anciently the Custom to admit Competent and omitted only against Decreets upon ordinary Actions Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension and albeit through neglect of the Clerks the Act hath not been Booked The Session being interrupted by the War shortly thereafter ensuing yet it is notorly known and was in practice Anno 1653. when the Decreet was obtained against this Defender whereupon the Appryzing proceeds and that practice was both just and necessar for if Decreets might be Suspended as oft as the Suspender can produce another Writ the most solemn Sentences should be made Insignificant for the ground of Excluding things Competent and omitted is not only that publick Sentences upon compearance are as valid as Transactions which upon no pretence can be Rescinded that Pleas be not perpetual but also because they are omitted dolo animo protrahendi litem which is ever presumed unless another Cause be assigned wherefore they were omitted as noviter veniens ad notitiam which is Sustained even as to Decreets in ordinar Actions and if in no case competent and omitted be allowed in Suspensions we shall have no more Decreets in ordinar Actions but the Defenders will still be absent and will Suspend as oft as they can find different Grounds as if of one Sum one have twenty or thirty several Receipts he will raise as many subsequent Suspensions which will at least serve for as many Sessions and though it should be alleadged quod dolo omisit it would not be Relevant so that if the Suspender can purge his Fraud either as not knowing of the Writ whereon he hath again Suspended or as not then having it presently in his power to instruct it would be sufficient which clears the difference betwixt Decreets of Suspension and other Decreets to operat no further than that in Suspensions the Fraud is purged by showing that the Writ was not ad manum which is not so in ordinar Actions where Terms would have been assigned to get the Writ and albeit the Lords might by modifying great Expences bar the multitudes of Suspensions they could hardly do it justly if of the Law it were no fault and it is known the Lords are neither in use of nor have time for such modifications The Lords superceeded to give answer as to this Point till the Compt proceeded as to the Particulars but the Lords had no respect to the alleadgance upon the Inhibition seing no Decreet followed nor upon the Decreet Arbitral which they found not Equivalent to an Assignation or Precept but the Lords found the Commission contained in the minute not to oblige the Defender as to any Diligence and therefore found that as to that Point he might acquire the third Appryzing which would have excluded him albeit he might have prevented it by Diligence Mr. Robert Swintoun contra Iohn Brown December 18. 1668. MArgaret Adinstoun being Infeft in Liferent in certain Roods of Land near Hadingtoun she and her second Husband grants a Tack to Iohn Brown thereof for certain years and thereafter till he were payed of 400. merks owing to him by the Husband after that Husbands Death she being Married to a third Husband there is a Decreet of Removing purchast at her and that Husbands Instance against Iohn Brown but the Husband did not proceed to obtain Possession by vertue thereof but brevi manu Ejected Brown whereupon Brown obtained a Decreet of Re-possession now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown he Charges Iohn Brown to Remove who Suspends on this Reason that he having obtained Decreet of Re-possession after the Decreet of Removing upon the Husbands violence cannot now be Removed without a new Warning The Charger answered that the Decreet of Re-possession bearing to be ay and while this Suspender was legally Removed and that in respect he had been put out Summarly and not by the preceeding Decreet of Removing which having now taken effect he being in Possession the Charger may very well Insist that he may now legally Remove by vertue of the Decreet of Removing The Lords Repelled this Reason in respect of the answer and found no need of a new Warning The Suspender further alleadged that he cannot Remove because he bruiks by vertue of a Tack granted by Margaret Adinstoun and her second Husband The Charger answered First That the Tack being only for four years specially and an obligement not to Remove the Tennent while the four hundred Merks were payed which is not a Tack but a personal obligement which cannot defend the Suspender against Mr. Robert Swintoun the singular Successor 2dly The Tack is null being Subscribed but by one Nottar The Suspender answered that a Right of Liferent not being Transmissible by Infeftment but only by Assignation the Assigney is in no better case nor the Cedent except as to the Probation by the Cedents Oath 3dly The Tack is Ratified judicially by the Wife in the Court of Northberwick which is more nor the concourse of any Nottar 4ly If need beis it 's offered to be proven by the Wifes Oath that the Subscription was truly done by the Nottar at her command The Charger answered that the judicial Ratification cannot supply the other Nottar because the same Nottar who is Nottar in the Tack as also Nottar in the judicial Ratification which is but done in a Baron Court So it is but assertio ejusdem notarij no stronger nor it was neither can it be supplyed by Margaret Adâ—â—stouns Oath de veritate facti because her Oath cannot be received in prejudice of her Assigney and though her self were Charger the Law requiring two Notâ—ars till both Subscribe the Writ is an unsubscribed Writ and in all matters of this nature parties may resile before Subscription The Lords found the Tack valid against the Wife Subscriber thereof and her assigney ay and while the sum thereof were payed but found the Tack was null as being but by one Nottar notwithstanding of the judicial Ratification being by the same Nottar and
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâ—cit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir Iames
the same only to anterior Creditors without mention of posterior Creditors the same might be thought to be of purpose omitted and cannot be extended by the Lords The Lords found the matter of fact and circumstances alleadged Relevant to infer a presumptive fraud and contrivance betwixt the Father and the Son which did insnare the Creditors who continued to Trade and therefore Reduced the same as to the Creditors and preferred them and the Relict in so far as she was a Creditor but not for any posterior or gratuitous Provision to her or to her Children but they did not find the two first grounds Relevant to prefer a posterior onerous obligation to a prior gratuitous or that this Bond was as a â—egitâ—ime Revockable and the Lords were chiefly moved because of the inconvenience to Creditors acting bona fide with a person Trading and repute in a good Condition And where in eventu his Estate is not sufficient both to pay his Creditors and this Bond for if it had been sufficient for both they would have come in paâ—â— passu having both done Diligence within the year Iohn Brown contra Robert Sibbald Eodem die IOhn Brown having taken a Feu of some Aikers of Land at a great Rent in Victual and Money pursue Robert Sibbald now his Superior to hear and see it found and declared that he might Renunce and be free of the Feu Duty The Defender alleadged Absolvitor because this Feu was by a mutual Conâ—ract by which the Vassal had bound him and his Heirs to pay the Feu Duty yearly and which obligation he could not louse at his pleasure for albeit Feues which are proper and gratuirously given without any obligement on the Vassals part but given by a Charter or Disposition as being presumed to be in favorem of the Vassal he might Renunce the same nam cuivis licet favori pro se introducto renunciare but here the Vassal being expresly obliged for the Feu Duty cannot take off his own obligation this case being like unto that of a Tack which being by mutual Contract cannot be Renunced though by a Tack only granted and Subscribed by the Setter it may The Pursuer answered that he opponed the common opinion of all Feudists de feudo refutando wherein there is no exception whether the Feudal Contract be Subscrived by both Parties for every Contract must necessarly import the Consent of both Parties and the acceptance of a Vassal to a Feu by way of Dispoâ—ition is all one with his express obligation in a mutual Contract 2dly Though such a Contract could not be Renunced yet this Pursuer may Renunce because by a Back-bond by the Superior who granted the Feu under his Hand he has liberty to Renunce when he pleaâ—es The Defender answered that this Back-bond not being in corpore juris nor any part of the Investiture it was only personal against that Superior who granted the same but not against the Defender who is a singular Successor It was answered that the mutual Contract not being de natura feudi but at most importing an obligement not to Renunce the Feu any personal Deed before this Superiors Right under the Hand of his Author is Relevant against him as well as his Author The Lords found the alleadgeances upon the Back-bond Relevant against the Supeâ—â—or though singular Successor it being granted of the same Date with the Feudal Contract and relating to a matter extrinsick to the nature of the Feu and so suffered the Pursuer to Renunce the same Gilbert Mcclellan contra Lady Kirkcudbright February 13. 1669. GIlbert Mcclellan being Infeft by the Lord Kirkcudbright in an Annualrent effeirand to four thousand Merks out of the Lands of Auchinâ—lour thereafter my Lady was Infeft in Property or an Annualrent out of the Lands at her pleasure for her Liferent use and after my Ladies Infeftment my Lord gave a Corroborative Security of the Property of Auchinflour and stated the four thousand Merks of principal and the two thousand and five hundreth Merks of Annualrent in one principal and Infeft him thereupon in Property wherein Gilbert was many years in Possession before my Lords Death In the Competition betwixt my Lady and him he craved preference because he was seven years in Possession 2dlie Because his first Right of Annualrent still stands and was Corroborat and therefore as he would undoubtedly have been preferred to my Lady for all his Annualrents for the sum of four thousand merks by his first Infeftment which is prior to my Ladies and as an appryzing by poinding of the Ground for these annualrents though posterior to my Ladies Infeftment would be drawen back ad suam causam to his Infeftment of annualrent and be preferred so my Lord having voluntarly granted-this Corroborative Security to prevent an appryzing it should work the same effect as if an appryzing had been then led and an Infeftment thereupon which would have accumulat the annualrents then past and made them bear annualrent in the same manner as this Corroborative security does The Lords preferred Gilbert for the whole annualrents of his four thousand Merks conform to his first Infeftment but would not Sustain the Corroborative Security being posterior to my Ladies Infeftment as if it had been upon an appryzing to give him annualrent for 2500. merks then accumulate but found no moment in his alleadgance of the Possessory Judgement unless it had been seven years after my Lords death when my Lady might have preferred her Right and not contra non valentem agere The Creditors of Balmerino and Couper contra my Lady Couper Februarie 16. 1669. THe Deceased Lord Cowper having Disponed his Estate to his Lady some of his Creditors and some of Balmerino's Creditors who was his Heir appearand did raise Reduction of the said Disposition as done on Death-bed and before the day of Compearance they give in a Supplication desiring Witnesses to be Examined and to remain in retentis that Cowper had Contracted his Disease whereof he died before the Subscribing of this Disposition and that he never went out thereafter but once to the Kirk and Mercat of Cowper which times he was supported and fell down Dead a Swoon before he was gotten home It was answered for the Lady Cowper First That Witnesses ought not to be Examined until the Relevancy of the Libel were Discust unless they were old or Valetudinary or penury of Witnesses whereas there are here fourty Witnesses ctaved to be Examined and the coming to Kirk and Mercat being publick Deeds there would be no hazard of wanting Witnesses 2dly The Creditors or appearand Heir have no interest unless the Heir were Entered or they had appryzed or had a real Right neither can the Creditors be prejudged by the Disposition as being on Death-bed because they may Reduce the same as being posterior to their Debts upon the Act of Parliament 1621. and the reason of Death-bed is only competent to Heirs and to these having real Rights from the
the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâ—as rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâ—ere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ— which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ— the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be
to inâ—er seasure of the Ship and Goods which is valide though a Priviledge derogator to the Law of Nations but speakes nothing whether the carrying of Enemies Goods shall make the Ship Prize so that that Priviledge not being granted by the Articles the Law of Nations takes place and the Ship may be declared Prize likeas in the case of Overvails Ship Decided in the last Session all that is there alieadged being here alleadged Overvail not instructing any Flandrian Concession to sail with Hollanders his Ship was Declared Prize upon that same very ground and the Testimony of the Skipper at Linlithgow is most unsuspect it being taken before the Skipper was otherwise prompted to Depone neither had the Clerk any interest but the most that can be pretended is that he had relation to some of the Owners which signifies nothing and the Skipper by his Office being the person Commissionat by the Owners who by his Office may Sell or Burden the Ship without a special Commission his Oath makes a full probation against the Owners who Intrusted him especially here where the Merchant and most part of the Company by their own confession are Hollanders which proves sufficiently for the Privateer unless they instruct that the Ship and Goods belonged to free men and them only which they have not done evidently and surely by all that they have produced but the Skipper who is the main Man to be trusted is contrary therefore it may be and is presumed to be a Contrivance to carry on the Trade of de Rivier a Hollander under the name of Clepaâ— in Bruges his Brother in Law The Lords upon the whole matter declared the Ship and Goods Prize butâ— found not that the want of a Passe alone was sufficient neither did they put it to the Vote by it self whether the sailing by Hollanders alone would have been sufficient notwithstanding of the Treaty and the Kings Order Extracted out of the Council of England which though it related not to Scotland some of the Lords thought it was sufficient unless it did appear that the King had given contrair Order others thought not unlesse that Concession could be otherwise showen Thereafter the Srangers offered to prove positively that there was a Concession which the Lords would not Sustain in regard that the last Session the first of Iune was given before answer to prove the Concession and the Term was now circumduced for not proving thereof Scot contra Langtoun Iune 19. 1669. IOhn Graham of Gillesby having Wodset certain Lands to Iames Langtoun he did thereafter with consent of Earl of Annandail Superior Eike twelve hundreth Merks to the Reversion and the Earl Ratified the former Wodset and Graham with his Consent of new Disponed again the Lands for the Sums in the first Wodset and Eike and Added some other Clauses the first Wodset was before the Act between Debitor and Creditor and by vertue thereof the Wodsetter was in Possession the second Wodset was after the said Act the Superior Consented only to the second wodset and of the same Date gave a Gift of Grahams Liferent to Robert Scot whereupon Robert having obtained general Declarator pursues now special Declarator for the Mails and Duties of the Wodset Lands as falling under the Liferent of Graham the Granter of the Wodset It was alleadged for Langtoun the Wodsetter that he ought to be preferred to the Donator not only for the first Wodset which was constitute before the Rebellion but for the second Wodset comprehending the Bike because the Superior by his Consent to the second Wodset without any Reservation had Communicat all Right in his Person and consequently the Liferent Escheat of Graham the granter of the Wodset in the same manner as if he had given the Wodsetter a Gift thereof and so no Gift no being anterior to the other could prejudge the Wodsetter It was answered for Scot the Donator that the alleadgeance is no way Relevant to exclude his Gift unlesse the Wodsetter could alleadge a Deed Denuding the Superior anterior to the Pursuers Gift but here the Superiors Consent is not anterior but of the same days Date and may be posterior and therefore the Gift which is the habilis modus must be preferred unto the Superiors Consent to the Wodset which is but indirect and consequential to infer the Right as Liferent at least both must be conjoined and have equal Right as done simul semel It was answered for the Wodsetter that the Superiors Gift must not be preferred to the Consent though of the same Date because he was then in Possession of the Wodset Lands and needed no Declarator and the Gift is but imperfect until a general Declarator which is the Intimation thereof no Declarator being requisite to the consent of the Superiour to the Wodsetter and so is preferable The Lords preferred the Wodsetter It was further alleadged for the Donator that the Wodsetter must restrict himself to his Annualrent and be countable to him for the superplus seing now he makes an offer to find the Wodsetter Caution and so he must either quite his Possession or restrict conform to the Act betwixt Debitor and Creditor The Wodsetter answered that his second Wodset bearing not only a Ratification of the first Wodset in all points but a Disposition of the same Lands falls not within that Clause of the said Act of Parliament which Regulates only Wodsets prior to that Act and the new Disposition makes the old Wodset as extinct and innovat The Donator answered that there being a jus quaesitum conform to the Act as to the former Wodset the posterior Ratification cannot derogat therefrom or take it away unless it had been exprest and in meritis causa it was alleadged that the Wodsetter had near the double of his Annualrent The Lords preferred the Donator as to the Superplus more nor the Annualrent of the first Wodset and ordained the Wodsetter to Restrict The Wodsetter further alleadged that the Gift was Antidated and Simulate to the Rebels behove and so accresced to the Wodsetter Which the Lords Sustained and found the Simulation probable by the Oath of the Superiour and the Witnesses insert in the Gift Hamiltoun of Corse contra Hamiltoun and Viscount of Frendraught Iune 22. 1669. WIshart of Cowbardie having Wodset his Lands of Bogheads and others to George Hamiltoun from whom the Viscount of Frendraught has now Right he did thereafter sell the same Lands to Iohn Hamiltoun of Corse who took the Gift of Wisharts Fischeat and having thereupon obtained general Declarator pursues now in a special Declarator for the Mails and Duties of the Wodset Lands Compears George Hamiltoun and the Viscount of Frendraught and produced the Wodset Right and alleadged that the Liferent Right cannot reach the VVodset Lands because the Gift is Simulate to the behove of Wishart the Rebel and common Author and so is jus supervenient authorâ— accrescens successori to defend this VVodset Right and condescends that it is
Argile not to insist against the Vassals who had been Loyal It was answered for the Earl that he had given no just grounds to his Vassals to expect that though they were in his power that he would destroy them and annul their Rights and seing His Majesty had fully and absolutely entrusted them to him they ought to have rested upon His Kindness and Generosity and not to have made all this Clamour where they have no Legal Defense it being no strange nor new thing for the King to give Gifts of Forefaulture without any Reservation of Vassals who had no Confirmation from the King yea many times without any Reservation of the Forefault Persons Debt and His Majesty has lately so done to the Marquess of Huntly to whom he gave the Estate of Huntly without Reservation either to Vassals or Creditors and that upon the Forfaulture of the Marquess of Argile who had Right to and was in Possession of the Estate of Huntly for vast sums of Mony and the Earl of Argile has the Gift of the remainder of his Fathers Estate with the burden of more Debt then the proper Debt of the House of Argile would have been over and above the Debts undertaken for the House of Huntly 2dly Whatever the Vassals might plead in Point of Favour yet they do not pretend to a Defense in Law And the Lords being Judges of the Law ought not to stop the Course thereof upon the Insinuations of any Party otherwayes they may deny the Course of Law to any of the Leidges when they please upon the account that they think the Law hard or rigorous or the Kings grants made conform thereto and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace to know the Kings meaning yet in claris â—on est locus conjecturis nothing can be clearer then the Kings meaning under His Great Seal and all the Defenders can pretend is Favour which is no Point of Right nor legal Defense The Lords granted Certification eâ—nâ—ra non producta conditionally that what the Vassals should produce betwixt and the tenth of November should be received and left it to the Vassals in the mean time if they thought fit to make Address to the King that he might interpose with the Earl in their Favours or to Debate any thing they thought fit when the Earl insisted for Reduction of their Rights for want of Confirmations or for Mails and Duties Agnew contra Tennents of Dronlaw Eodem die AGnem having Appryzed the Lands of Dronlaw from Mr. Robert Hay Advocat as Cautioner for the Earl of Buchan to the behove of the Earl of Kinghorn pursues the Tennents for Removing who alleadged Absolviture because the Tennents were Tennents by payment of Mail and Duty to the Liferenter Mr. Robert Hayes Mother and she is not warned nor called The Pursuer answered that the Liferenter dyed before the Term and that he was content that the Tennents should be Decerned to Remove but at the next Term of Whitsonday Yet the Lords Sustained the Defense seing the Liferenter was living the time of the Warning Farquhar contra Magistrâ—tes of Elgin Iuly 2. 1669. FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat and the Baillies being together upon the Street about eight or nine a Clock in the Morning the Messenger with several other Persons present Charged them to go into an House near by which they designed to them and to take Lovat being then in Bed and the Messenger offered to go with them and enter first yet the Bailies did not obey but said they would go at their conveniency when they had conveened their Neighbours to assist there is an Execution and Instrument upon the back of the Caption to the effect foresaid produced whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption The Defenders alleadged Absolviture First Because they were no further obliged but to conveen the Neighbours of the Town and send them with the Messenger to assist which they offered to do 2dly Albeit themselves were obliged to take the Rebel if he were showen to them within their Jurisdiction yet they were not obliged to search every House of the Town for him or to enter within closle Doors 3dly The Lord Lovat being known to be a fierce young Man who ordinarly had a Minzie attending him they were not obliged to adventure upon him without calling the assistance of their Neighbours which they did within an hour or two thereafter and he was gone The Lords Repelled all these Defenses in respect of the Execution and instrument produced and found the Magistrats being Charged obliged to take the Rebel and without delay to search any House within the Town that was particularly shown to them unless they had been Repulsed by Force or the Doors by Violence keeped closse against them by the Master of the House and ordained the Pursuers to adduce the Witnesses in the Instrument and others to prove the particulars foresaid to have been so done as is therein exprest Bow contra Campbel Eodem die BOw Stabler in Edinburgh as Assigney to a Sum of Money due by Glenurchy and also as Donotar to the Escheat of his Cedent being called in a double Poinding and competing the Donator alleadged he ought to be preferred to the Arrefter because the Debt in question falling in his Cedents Escheat he had taken the Gift of the Escheat bearing expresly all Goods the Rebel had or should acquire and this Debt being acquired after the Gift did accresce to him the Rebel not being yet Relaxed It was answered that though the stile of the Gift bear all Goods to be acquired yet that is always interpret such as happen to be acquired within year and day after the Horning It was answered for the Donatar that he oppones the Tenor of his Gift and if any limitation could be thereof it could only be of Sums to be acquired within a year after the Gift and not within a year after the Horning because sometimes Gifts are not taken within a year of the Horning The Lords found the Gift to extend to the Sum in question being acquired by the Rebel within a year after the Gift and that the general Clause of Goods to be acquired did extend no further then to Goods acquired within a year after the Gift Laird of Grubbet contra More Eodem die THe Barony of Lintoun belonging to Sir Iohn Ker of Litledean the Lands of Morbatle and Otterburn are parts thereof there is a piece of Land called Greenlaw lying in the borders of Morbatle and Otterburn and there is an Heretable Right of the Lands of Otterburn granted by Sir Iohn Ker to one Young and by that Young a subaltern Right to another Young bearing the Lands of Greenlaw per expressum both these Young's joyntly Dispone to Grubbet the Lands of Otterburn with the Pertinents comprehending the Lands of Raschbogs in the
end of which Disposition there is a Clause bearing that because the Young's were kindly Tennents in the Lands of Greenlaw therefore they Dispone their Right thereof and kindlynesse thereto to Grubbet More having acquired the Rights of the Lands of Morbatle from Sir Iohn Ker and the Earl of Louthian having Apprized Sir Iohn's Right of the Barony of Lintoun in Anno 1636. gives a particular Right of Greenlaw alone which is now also in the Person of More whereupon arises a Competition of Right between Grubbet and More Grubbet alleadged that he has Right to Greenlaw as a Part and Pertinent of Otterburn which he and the Young's his Authors have Possest far beyond 40. years as Part and Pertinent of Otterburn and offers to prove that there is standing Marches between Morbatle and Otterburn within which Marches Greenlaw lyes on Otterburn side and that his Infeftment produced granted by Young to Young bears expresly Greenlaw It was alleadged for More First that Grubbet cannot pretend Greenlaw to be Part and Pertinent of Otterburn because by his own Infeftments produced granted by the Young's and accepted by him Greenlaw is not exprest as Part and Pertinent of Otterburn albeit Raschbog tho lesse considerable then it be exprest and on the contrair it is declared that the Young's were kindly Tennents of Greenlaw and Disponed their kindness thereof aud offers to prove that the Young's were in constant custom of Service to Sir Iohn Ker in Armes and otherways whenever they were required and that most of the Lands on the border were Set only for Service which Service could not be attribute to Otterburn because it was holden blench of Sir Iohn and if need be 's offered to prove by Witnesses that when the said Young's came not to the said Service they were poinded therefore 2dly More offered to prove that Greenlaw is a distinct Tenement both from Otterburn and Morbatle and hath past as a distinct Tenement since the year 1636. and hath a known March between it and Otterburn viz. a Know. 3dly For Grubbets pretence of bruiking Greenlaw as Part and Pertinent of Otterburn for 40. years so that he might claim it by Prescription the alleadgeance ought to be Repelled first because Prescription cannot proceed without an Infeftmen and it cannot be ascribed to the Young's Infeftment wherein they acknowledge that they were kindly Tennents of Greenlaw after which no course of time can ever prescribe a Right to Greenlaw as part and Pertinent of Otterburn by that Charter and therefore any Possession that is thereof is without Infeftment 2dly There is not fourty years Possession abating Mores Minority 3dly There are interruptions and therefore if Greenlaw be either a distinct Tenement or part of Morbatle it belongs to More It was answered for Grubbet that he and his Authors Possessing Greenlaw these 40 years past as part of Otterburn gives him sufficient Right thereunto notwithstanding of any acknowledgement in the Charter or without the Charter before that time for Prescription may change Part and Pertinents so that which was once not acknowledged to be a part by Possession 40 years thereafter may become a part and that acknowledgement never being made use of Prescribes and the Charter in which it is is a sufficient Title both for what was parts the time of the Charter and what becomes thereafter parts by Prescription 2dly The acknowledgement of a Party having Right is of no effect when by demonstration of the Right it self the contrair appears as here therebeing an anterior Right of Property of the Young's produced before that acknowledgement 3dly The ackowledgement is not that they were only kindly Tennents otherwise it is very well consistent with the Property that they being first kindly Tennents and that kindliness being thought more favourable to maintain Possession in these places then any Heretable Right they might very well Dispone Otterburn whereof Greenlaw is a part and might also Dispone their kindness of Greenlaw they had before the Right of Property neither doth it infer because Raschbog is exprest as Pertinent of Otterburn which hath been upon account that Raschbog was then unclear that therefore Greenlaw is no Part thereof or else it could have no more parts but Raschhog there being no more exprest and as for the alleadged Services done by the Young's to Sir Iohn Ker they cannot infer that the Young's were then Tennents of Greenlaw because such Services being only general and no particular Services accustomed by Tennents they might have been performed to Sir Iohn as Superior or as out of kindness to a great Man in the Countrey and it s offered to be proven if need be 's that hundreds granted such Services who were not Tennents so that unless there were a Tack Inrolments of Court or Executions of Poinding produced to instruct Services as a Tack-duty on Greenlaw it is Irrelevant The Lords by a former Interlocutor had found that by the acknowlegement in Young's Charter or any thing therein was not sufficient to exclude Greenlaw from being Part and Pertinent of Otterburn but they found that is More would alleadge a Tack or Inrolment of Court to the Young's of Services for Greenlaw it were sufficient or otherwise if he would alleadge constant Service of the Young's by Riding c. with Sir Iohn and there being Poinded by him when they were absent they found the same with the acknowledgement in Grubbets Right to exclude Grubbet from Greenlaw and if these were not alleadged they ordained Witnesses to be Examined upon the ground hinc inde before answer upon these points whether Greenlaw was known to be a distinct Tennement both from Otterburn and Marbotle or whether it was known to be Part and Pertinent of either and what were the Marches and Meithes thereof and what Services were done by the Young's to Sir Iohn Ker and if such Services were done by others not being moveable Tennents Barclay contra Barclay Iuly 6. 1669. BArclay of Towy having but one Daughter and his Estate Tailzied to Heirs-male his nearest Heir-male being the old Tutor of Towy above 80. years of Age and having also but one Daughter and neither Father nor Daughter being Persons of much discretion Captain Barclay his next Heir-male having also but Daughters he Dispones his Estate in favours of his own Daughter and it being rumored that Captain Barclay pretended a Bond of an hundreth and three thousand Pounds granted by Towy to him that thereby he might prefer him to the Tutor and that the Tutor as Heir-male had also granted several Dispositions to Captain Barclay of that Estate Towies Daughter being an Infant her friends did also procure a Disposition from the Tutor to her and she pursues a Reduction and Improbation against Captain Barclay of the foresaid Bond and Dispositions made to him he Compears and produces a late Disposition made by the Tutor and alleadges that he had the Bond foresaid and two Dispositions from the Tutor anterior to this produced but that a Person to whom
young Garner was then an Infant in his Fathers Family and albeit the Right be granted by his Uncle yet it is necessarly inferred to be Acquired by the Fathers Means because it bears not for Love and Favour but for Sums of Money and the Uncle had Bairns of his own It was answered that albeit the Right had been Acquired by the Fathers Means yet its anterior to the Apprizing and Sums on which it proceeds whereupon nothing can be taken away but what is posterior thereto albeit there were a Declarator and Reduction intented for that purpose as there is none The Lords Sustained the alleadgeance and Reduced the Apprizing as to these Tenements 2dly The Pursuer alleadges the Apprizing as to Lady-kirk must be Reduced because the Pursuers produce a prior Infeftment granted by Iohn Garner to his Wife in Liferent and his Bairns in Fee it was answered that the said Infeftment was base never cled with Possession The Pursuers Replyed that the Fathers Liferent not being Reserved the continuation of Possession was as lawful Administrator to the Pursuers Bairns and if need be 's its offered to be proven he had a Factory from them The Defender answered that a Fathers Possession being continued was never found to validate a base Infeftment granted to his Children albeit his Liferent were expresly Reserved but it s ever accounted a latent fraudulent Deed and a Factory can be of no more force then a Reservation otherwise it were impossible to obviat fraudulent conveyances betwixt Fathers and Children The Pursuer answered that albeit such Reservations are not valide in Rights freely granted by Fathers yet it meets not this case especially where there was an anterior Onerous Cause Iohn Garner being obliged by his Contract of Marriage that what Lands he should Acquire should be to his Wife in Liferent and to the Bairns of the Marriage The Lords found that the Bairns Infeftment granted by their Father albeit he had Possest by a Factory from them was not cled with Possession or sufficient to exclude a posterior publick Infeftment and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest Here it was not alleadged that the Factory was made publick by Process founded at the Fathers Instance or otherwise in this Process The Defender to satisfie the Production of an Assignation upon which the Apprizing proceeded which the Pursuers offered to improve as false in the Date and the Defender now produced another Assignation of the same Date and declared he abade by the same as of that Date and that it being a missing he had caused the Cedent to Subscribe another of the same Date with the first which did expresly bear Reservation of another Assignation formerly Subscribed which he did also bide be as truly Subscribed but not of the Date it bears but of the Date of the true Assignation insert therein The Lords Sustained the Assignation now last produced and did not quarrel the other Assignation though another Date was insert then when it was Subscribed for the Cause foresaid Alexander Glasse contra Iohn Haddin Eodem die ALexander Glasse and William Reid having a proper Wodset of the Lands of Alairtnenie and Iohn Haddin being also Infeft in an Annualrent forth thereof some days prior compet for the Maills and Duties Haddin alleadged that both infeftments being base from the same Author his Infeftment of Annualrent is preferable because prior and first cled with Possession It was answered any Possession he had was by a Factory from Glass It was replyed that he offered to prove Possession before that Factory It was duplyed that by Haddins back Bond produced bearing expresly that Glasse had had a valide Right to the Maills and Duties of the Lands and that he was in Possession thereof and that Haddin had accepted a Factory from him and was obliged to compt to him for the Maills and Duties without any Reservation of his own Right this was an unquestionable Homologation and acknowledgement of the Right and equivalent to a Ratification thereof The Lords found by the back Bond produced of the Tenor foresaid that Haddin had so far acknowledged Reid and Glasses Right that he could not quarrel it upon his own Right but he proponing that there was a Reservation of his own Right related to in the back Bond the Lords found the same Relevant he proving Possession before the other Party and before the Factory The Old Colledge of Aberdeen contra the Town of Aberdeen Iuly 13. 1669. THe Principal and the remanent Members of the old Colledge of Aberdeen having Set a Tack to Doctor Dun of his Teinds during the Principals Life and five years thereafter and bearing an Obligement to renew the like Tack from time to time for ever The Doctor Mortified the same to the Town for plous uses after the Death of that Principal many years The Colledge now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds and the Town Defends upon the foresaid Tack It was answered for the Colledge that the Tack is only for the Principals Life and five years after which is expired and as for the new Obligement to renew such Tacks for ever It was answered First Albeita Tack were conceived in these Terms it would be null as wanting an ish 2dly Obligements of the present Incumbents in Universities are not obligator but where there is an equivalent Cause Onerous Received for the good of the University It was replyed for the Town that an Obligement to grant a Tack by them who can grant it is equiparat to the Tack it self which requires no other solemnity as an obligement to grant an Assignation is equivalent to an Assignation and that there is here a Cause Onerous of the Universities Obligement because the Tack bears expresly 300. Merks of grassum and that the former Tack-duty was only ten Merks which by this Tack is made 50. Merks and albeit it want a desinit ish yet it must be valide for a Renovation during this Principals Life and five years after and it is Homologat by the Colledge who have received the same Duties several years since the first Tack expired It was duplyed for the Colledge that this Tack is not valide for any time after the first ish because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelats are prohibit for longer time nor their own Life and five years after and these Teinds are a part of the benefice Mortified to the Colledge and they must be accounted as beneficed Persons and albeit the Teinds were augmented to 50. Merks yet they are worth 200. Merks and for the Receipt of the Duties after the first Tack it is per tacitamrelocatiâ—nem and no Homologation of the Obligement to renew the Tack The Lords found that the Colledge was not comprehended under beneficed Persons but found that there was no sufficient Cause Onerous alleadged for this Obligement of Renewing
Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen Lesly
having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself the
Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâ—igner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ— year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the â—eir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
Artrachy and others proceeding from Con in favours of Iohn Stuart Advocat William Neilson Mr. Iohn Alexander and Marjory Iameson his Relick or Andrew Alexander Brother to Mr. Iohn wherein there was produced an Apprizing against Con at the instance of George Stuartâ— Likewise a Liferent-seising of Helen Kinaird Relick of Con with a Liferent-tack to her of the Lands contained in the Seising and also of other Lands and another Tack of two nineteen years of the same Lands There is also produced a Disposition of the Apprized Lands by George Stuart to William Neilson and because William Neilson failzied in payment of four thousand Merks of the price George Apprized the Lands again from William Neilson and upon all these Rights there is publick Infeftments there is also a second Apprizing at the instance of Andrew Alexander long after George Stuarts Apprizing from Neilson but no Infeftment thereon and there is produced a Disposition by George Stuart as returning to the Right by the second Apprizing made to Mr. Iohn Alexander Advocat and by him to Marjory Iameson his Spouse and publick Infeftments on these and there is a Decreet of Cerification Extracted contra non producta And now the Doctor insists on this Reason of Reduction that George Stuarts first Apprizing against Con the common Debitor was satisâ—ied by Intromission within the Legal and so is extinct and all the subsequent Rights depending thereon fall therewith in consequence It was alleadged for the Defenders that George Stuart having in his Person the Apprizing and finding Helen Kinaird Cons Relick in Possession of a great part of the Lands by Liferent infeftment and a Liferent and two ninteen years Tacks which would have excluded him he purchased Right and Assignation thereto from the Relick and continued her Possession thereby and did ascrive his Possession to the Liferenters Right and not to the Apprizing so that his intromission being by another and more valide Title could not be ascrived to the Apprizing to extinguish it The Pursuer answered that the Defense ought to be Repelled because he had obtained Certification against the Defenders of all Rights not produced and albeit the Liferenters Seising be produced yet the Warrand thereof the Charter or Precept was not produced so that it is now declared as false and feinzied and the Seising being only the Assertion of a Nottar without a Warrand is no Title to which the Intromission can be ascrived and therefore it must be ascrived wholly to the Apprizing The Defenders answered First That albeit the Charter be now improven for not production yet it being a true Evident and now produced the effect of the Certification cannot be drawen back to make George Stuart countable who Possessed bona fide cum titulâ— which though now improven yet the effect of the improbation can only be a sententia lite contestata aut â—â—ta before all which the Liferenter was Dead and the intromission ended unless the Charter being produced had been by Witnesses or otherwayes proven to be false 2dly Albeit Certification be obtained against George Stuart and Marjory Iameson yet the Certification is not against Andrew Alexander from whom Marjory hath purchased Right after the Certification and produced the Appryzing at Andrews instance against Neilson and alleadges that albeit the Certification could take away George Stuarts Right in so far as concerns Marjory Iameson or her Authors yet that being no annulling of their Right by being Transmitted in favours of the Pursuer but only as being void through want of the necessary Evidents it cannot impede Andrew Alexander against whom no Certification is obtained to Defend George Stuart his Authors Right and to ascribe George his Possession to the Liferent Infeftment whereof he now produces the Charter The Pursuer answered that he was not obliged to take notice of Andrew Alexanderâ— Right because it was incompleat no Infeftment following thereon and because it was null being deduced against Neilson after Neilson was Denuded by the Appryzing led against him by George Stuart and Infeftment thereon so that the Pursuer having prevailed against George Stuarts Right which is the only valide Right and did exclude Andrew Alexander by the Rule vinco vincentem c. and if this were otherwise Sustained no Improbation could be effectual unless all the invalid and imperfect Rights were particularly improven which cannot be known and was never done 3dly Certification being Extracted against George Stuart himself all Subaltern Rights flowing from him fall in consequence and so Andrew Alexanders Right which is but incompleat and latent The Defender answered that albeit Andrew Alexander was not called or Certification taken against him as a party necessar yet before Conclusion of the Cause he has a good interest to produce his Appryzing and to alleadge that the Certification against George Stuart his Author who neglected to produce the Liferenters Charter could not prejudge him as deriving Right from George Stuart as a singular Successor much less could the neglect or Collusion of Marjorie Iameson prejudge any other but her self and therefore craved that if the Lords would Sustain the Certification of the Liferent Charter against Marjorie Iameson that it should be without prejudice to Andrew Alexander as to his Right of the said Liferent or to George Stuarts Right of the Liferent in so far as the same is Derived to Andrew Alexander The Lords adhered to the Certification in so far as concerned Marjory Iameson reserving Andrew Alexanders Right and his Authors in so far as concerned Andrew Alexander as accords This Cause being again Called the 9. of Iune the Defenders ascribed their Possession to the Liferent and two nineteen years Tacks against which there was no Certification The Pursuer answered First That the Liferenter having bruiked by a Liferent Infeftment and having ascribed her Possession to it it being improven she could not ascribe her Possession to the Tacks quia ex pluribus titulis ejusdem rei nemo fit Dominus 2dly George Stuart the Appryzer having both the Appryzing and these Liferent Rights in his Person and not having declared his mind by what Title he possessed his Possession must be attribute titulo nobilioti to the Apprizing and his intromission imputed thereto duriori â—orti as the Lords use ordinarly to do in â—dium of Appryzings if the Appryzer adhere to the expyring of the Legal but if the Defender will grant the Lands Redeemable the Pursuer is content that the Intromission be ascribed to the Liferent Right primo loco The Defender answered that though George Stuart Declared not by what Title he Possessed yet his intromission must be ascribed potiorâ— juri to that Right which was preferable and so to the Liferent which would undoubtedly exclude his Appryzing and therefore he acquired Right from the Liferenter being then in Possession and it is unquestionable that any party who hath many Titles though they first make use of one if that be Reduced they may make use of the rest and
so the Defender in respect the Liferent Infeftment is improven makes use of the Tacks The Pursuer further alleadged that the Tacks comprehended Lands not contained in the Contract of Marriage and as to there it was a voluntar Deed granted by a Husband to his Wife stante matrimonio and Revocked by George Stuarts Appryzing which is a legal Disposition in the same way as if the Husband had Disponed to George Likeas the Doctors Debt was anterior to these Tacks so that George Stuart in so far cannot cloath himself with these defective Rights against which his Appryzing would have prevailed As to the superplus The Defender answered that albeit the superplus were donatio and that the Husband might recal it indirectly by a subsequent Disposition it was never found that an Appryzing was such a Revocation and albeit the Doctor might Reduce the Tacks as to the superplus being without an onerous Cause after his Debt yet that Reduction cannot take effect ante litem motâ—m to make the Liferenter or George Stuart Comptable for the bygone Fruits or which is equivalent to impute them in the Appryzing The Lords found that the Defenders Intromission might be imputed to the Liferent Tacks and not to the Appryzing but as to the Superplus they were not clear even to impute that in the Appryzing upon the Considerations alleadged by the Defenders but as to that the hour prevented the Vote Margaret Hunter contra The Creditors of John Peter June â—1 1670. THere being a Competition betwixt Margaret Hunter the Relict of umquhile John Peter and his Creditors Appryzers or Adjudgers of his Lands in Anno 1658. The said Margaret produced an Infeftment by her Husband of a yearly Annualrent of 700. merks bearing to be for Implement of her Contract of Marriage which being also produced by her Registraâ—â— bear only to four thousand merks of Tocher and an obligement that upon payment of the Tocher the Husband should Imploy the same and four thousand merks more for her in Liferent whereupon the Creditors alleadged that her Infeftment behoved to be restricted to the Annualrent of eight thousand merks And she having alleadged that her Contract was Vitiat after the Marriage and did bear seven thousand merks of Tocher and an Annualrent thereof and of other seven for Joynture the seven was made four but that not being then instructed the said Margaret was only preferred as to the Annualrent of eight thousand merks but prejudice to her to prove any further to have been in her Contract and that the same was Vitiat She now pursues a Declarator against the Creditors that her Contract was altered and Vitiat after the Marriage and that she ought to have a Poinding of the Ground for two hundreth and ten merks yearly the times bygone wherein her Infeftment of seven hundreth merks exceeded the Annualrent of eight thousand merks and which she yet wanted and for the whole seven hundreth merks in time coming whereupon Witnesses were adduced for proving of the Vitiation which they did prove And it was now alleadged by the Creditors that although the Contract was altered yet she could have no more in their prejudice but the annualrent of eight thousand merks because the Contract was altered before it was Registrat and her Infeftment bears expresly for Implement of her Contract Registrat which must import that it was an Implement of the Contract as it was altered after the Registration and not as it was before the Registration seing it does not mention the particular Sum either of eight or fourteen thousand merks and the seven hundreth merks is but fifty merks more than the Annualrent of eight thousand merks at the time of the Infeftment 2dly The Contract was altered by consent of the Father and the Husband Contracters and if need beis it is offered to be proven that it was with the Relicts own consent so that it was no Vitiation but a warrantable alteration 3dly Albeit it had been unwarrantably altered yet two Creditors having lent their Money to John Peter bona fide and seing an Infeftment granted by her Husband in Implement of the Contract of Marriage Registrat and finding only in the Register eight thousand merks and she having produced it and made use thereof and so Homologat the Contract altered they could be prejudged but she might pursue the Heirs of John Peter 4thly They having bruiked by their Infeftment and a Decreet they cannot be lyable for the Repetition of bygones nor cannot suffer their Ground to be Poynded therefore But this Declarator can only take effect a sententia aut lite mota 5thly Though the Vitiation were fully Sustained John Peter was only obliged to Infeft her in an Annualrent eâ—â—eâ—ring to the Tocher upon payment thereof Ita est the Tocher was never payed and so she can only claim the Annualrent of seven thousand merks which the Husband should have added to the Tocher And albeit ordinarly such Clauses prejudge not the Wife where the Tocher is not payed through the Husbands neglect who is obliged to do Diligence for his Wife Yet here it is offered to be proven that the Relicts Father was insolvent the time of the Contract and still thereafter so that no Diligence could have recovered it It was answered for the Relict to the first that albeit her Infeftment relate to the Contract which was Registrat yet not to the Contract as it was Registrat and the Husband having so great Trust the Wife was not obliged to look to the Register or Extract which was in her Fathers and Husbands Custody and by the Testimonies of the Witnesses it appears that they have Colluded to abate both the Tocher and Joyntour without her Consent To the second The Father and Husband not being sole Contracters but the Wife they could not after the Contract and Marriage without her consent alter her Right To the third The Creditors lending their Money bona fide cannot prejudge the Relicts Right for bona fides operats only in payment made and other necessary Deeds but not in voluntary Acts as lending of Mony wherein the Lender must follow the Faith and Condition of the Borrower whose Rights though never so clear in any Record yet if thereafter they be improven or Reduced the Creditors bona fides avails nothing and though the Relict made use of the Contract Vitiat yet it was with Reclamation against the Vitiation and therefore in the Decreet the same is reserved which is the Ground of this Declarator To the fourth The Relict craves not the Repetition of the Fruits uplifted by the Creditors but only that the Ground may be Poynded for what she wants of bygones To the last By no Practice was ever a Wife prejudged by not payment of the Tocher and albeit the Fathers being Insolvent might have been a Ground to the Husband to refuse to Infeft his Wife in any more than the Annualrent of 7000. merks till the Tocher were payed Yet where he has actually Infeft her in more
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make
would have been before the Bailzies when the Cause was Advocat at which time Cornelius Term of payment was not come The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters and that the case should be considered as it was the time that the Advocation was raised and preferred Charles Charters upon his posterior Arrestment in respect the Term of payment of his Debt was come to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come whereupon Citation was used before the Term came The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation nothing was Called until the midle of December Murray of Achtertire contra Gray December 16. 1670. MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds whereof one was that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground wherein some little Burns were gathered to a Head and thence were conveyed through Achtertires own Ground to his Miln Lade and that Gray had broken down that Cast whereby the Burns were divertedâ— Gray having compeared and proponed nothing the Libel was found Relevant and admitted to Achtertires Probation who by several Witnesses proved that the Defender had broken down that Cast of whom some Deponed simply but two of them Deponed thus that Gray had broken down the new Cast but that the Burns gathered therein in the time of Floods did water Grayâ—s own Lands and that by the new Cast they were keeped in and could not water the same whence it arose to the Lords consideration whether that Deed of Contravention was sufficiently proven or whether the Testimonies of the Witnesses being qualified that the Defender had done the Deed but in continuation of his former Possession of the watering of the Burns whether respect ought to be had to that qualification some thought not because the Fact as it was Libelled was found Relevant and proven and the qualification ought to have been proponed by way of Defense but it was found that the Testimonies being so qualified did not sufficiently prove to infer a Contravention for if the Contravention had been proven by Writ or Oath such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention But because the Testimonies were not to be considered by the Parties the Lords ordained the Sentence to expresse the foresaid Reason of it that the Pursuer before Extract might alleadge any thing thereanent he thought fit Nicol Langtoun contra Robert Scot Decem. 17. 1670. JOhn Graham of Gillesby having Set a Track of his Lands of Graystoneflat to Nicol Langtoun and being at that time at the Horn Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior and thereupon obtains general and special Declarator Decerning Langtoun to pay the Duties to him as Donator Langtoun Suspends and raises Reduction on this Reason that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen and it being answered by Scot that he being a lawful Creditor of the Rebels might lawfully accept and make use of this Gift for his own security albeit the Rebel had procured the same and Scot the Donator having Deponed anent the simulation of the Gift did acknowledge that the Rebel had procured the Gift and that he had it blank in the Donators Name and that he did fill up Scots Name and delivered it to him The Lords found the Oath to prove the simulation of the Gift and that it having been in the Rebels own hands blank in the Donators Name it was equivalent to an Assignation from the Rebel and that Scot accepting of it so from him could not justly or bona fide make use of it even for security of a just Debt in prejudice of the Tacks-man who had before gotten his Tack from the Rebel Alison Kello contra Kinneir Ianuary 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet having pursued a Reduction of an Apprizing of the Lands of Paxtoun Led at the Instance of Mr. Samuel Hume against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason that the said Mr. Alexander was satisfied by his Intromission within the Legal this pursuit being against Mr. Alexander Kinneirs Son who is Minor and being stopped upon his Minority quid Minor non tenetur placitare de hereditate paterna The Lords did upon the Pursuers Petition grant Commission to Examine Witnesses upon the Intromssion to remain in retentis till the Cause might be Determined in respect the Witnesses might die in the mean time which being reported the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation that the stated Accompt might remain in retentis The Defender being heard again before the Lords did alleadge that the Accompt could not be stated upon this Probation but that there being yet no Litiscontestation in the Cause neither can be through the Defenders Minority and this Probation being but before answer to remain in retentis and taken by Commission the Defender not being present at the Examination and the matter being very ancient fifty years agoe the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance viz. That he offered him to prove that during the years of the Legal the Lands were Possest by several Persons by Dispositions or Tacks both under Reversion for certain Sums of Money due by the said Margaret Nisbet which Rights were granted by her and were now produced by the Defender which with the saids Rights produced is much more pregnant nor the Pursuers Probation by some inconsiderable Countrey People without any Adminicle in Writ It was answered for the Pursuer that the alleadgeance was no way Relevant being contrare to her Libel and founded super jure tertij for this Defender hath no interest in the Wodset Rights nor doth any Person appear for them or own them and if this were sustained it would afford a current evasion in all kind of Pursuits upon Intromission by offering still to prove that the Defender did not but that a third Party did Intromet and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation and in no case have allowed a conjunct probation It was answered that in a matter so old and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party and have oft so done especially the same ought to be done here where the probation is by inconsiderable Persons and so suspect and exorbitant proving â—â—nneirs Intromssion to be before he had any Right and the quantities to be much higher then the written Tack of the Lands produced The Lords found that they could not admit a Probation for the
the Cautioner in the Suspension may be reached It was alleadged no Transferrence because Bagillo â—s Father obtained a general Discharge from Denhead before any Intimation upon Collistouns Assignation and albeit the Discharge be posterior to the Assignation produced it must liberat the Debitor who was not obliged to know the Assigney before Intimation It was answered that the Debitor might pay to the Cedent bona fide before Intimation yet a Discharge obtained from the Cedent after Assignation would not liberate against the Assigney though it were before Intimation and this general Discharge bears no onerous Cause 2dly This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead at that time it cannot extend to this sum assigned by Denhead long before and who could not know whether the Assigney had intimate or not and cannot be thought contrair the Warrandice of his own Assignation to have Discharged the sum Assigned especially seing there was an Assignation long before which was lost and the Intimation thereof yet remains and this second Assignation bears to have been made in respect of the losse of the former and yet it is also before this general Discharge The Lords found the general Discharge of the Cedent could not take away this sum formerly assigned to him though not Intimat unlesse it were proven that payment or satisfaction was truely made for this Sum. Alexander Wishart contra Elizabeth Arthure February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh and having entered in Possession by lifting of Mails and Duties some of his Discharges being produced Alexander Wishart as now having right to the Tenements pursues a Declarator against Elizabeth Arthure only Daughter to Mr. William for declaring that the sum whereupon the Annualrent was Constitute was satisfied by Intromission with the Mails and Duties of the Tenements The Defender alleadged that this was only probable scripto vel juramento and not by Witnesses for an Annualrenter having no Title to Possess out-put and in-put Tennents cannot be presumed to uplift more than his annualrent especially seing his Discharges produced for many years are far within his annualrent and it were of dangerous consequence if Witnesses who cannot prove an hundreth pounds were admitted not only to prove Intromission with the Rents so far as might extend to the Annualrent but so much more as might satisfie the Principal and thereby take away an Infeftment for albeit that Probation has been Sustained to extinguish Appryzings which are rigorous Rights yet not to take away Infeftments of Annualrent It was answered that albeit Witnesses are not admitted where Writ may and uses to be adhibite in odium negligentis who neglected to take Writ Yet this is no such case and therefore in all such Witnesses are admitted for if the Pursuer had insisted against the Defender for intrometting with his Mails and Duties of whatever quantity and time within Prescription Witnesses would have been admitted The Defender could only have excepted upon his Annualrent which would have been Sustained pro tanto but the Pursuer would have been admitted to prove further intromission which being by vertue of his Security for a Sum and in his hand would Compense and Extinguish that Sum which is all that is here craved and whereupon the Witnesses are already Adduced The Lords Sustained the Probation by Witnesses for the whole intromission to be imputed in satisfaction of the Principal Sum and Annualrents Lowrie contra Gibson Eodem die LOwrie being Superiour to Gibson in a Feu pursued him before the Sheriff for annulling his Feu for not payment of the Feu-duty and obtained Decreet against him and thereafter Pursued him before the Lords for Mails and Duties wherein Compearance being made Gibson made an offer that if Lowrie would free him of bygones and pay him 1600. merks he and his Authour would Dispone their whole Right which being accepted by the Superiour Decreet was pronunced against Gibson to denude himself upon payment Shortly thereafter Gibson drew up a Disposition and Subscribed it in the Terms of the Decreet and offered it to Lowrie who refused it because his Author had not Subscribed Thereafter Gibson Suspended upon Obedience and Consigned the Disposition which was never Discussed but Gibson continued in Possession still from the Decreet which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator annulling his Feu because the Sheriff was not a competent Judge to such Processes and because Gibson had offered the Feu-duty which was refused so that the not payment was not through his fault and also insisted for Reduction of the Lords Decreet as built upon the Sheriffs Decreet and falling in consequence therewith And as for any offer or consent the assertion of a Clerk could not instruct the same unless it had been warranted by the Parties Subscription It was answered that Gibson having Homologate the Decreet by an offer of the Disposition conform thereto which was only refused because it wanted the Authors Subscription and having Suspended upon Obedience he cannot now object either against the Decreets or Consent It was answered that so long as the Decreets of the Sheriff and the Lords were standing Gibson might be compelled thereby to Consign the said Disposition but that is only on these Terms to be given up if the Lords saw Cause and hinders not Gibson to alleadge why it should not be given up And as to the offer to deliver the Disposition the Instrument of the Nottar could not instruct the same but only Gibson's own Oath The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson yet the simple offer to deliver the Disposition did so Homologate the Decreets and Consent that he could not quarrel the same but they found it not proven by the Instrument without the Oaths of the Witnesses insert in the Instrument And in regard that Lowrie had letten the matterly over for more than twenty years they Declared that the Agreement should only take effect from this time and that Gibson should not be comptable for the bygone Duties Ninian Home contra Francis Scot. February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. merks He Suspends on this Reason that both Parties having referred the matter verbally to an Arbiter he had determined 200. merks to be payed for all whereupon Hume had pursued It was answered that verbal Submissions and Decreets Arbitral are not binding but either Party may resile before Writ be adhibite The Lords found the Reason was Relevant to be proven thus by the Chargers Oath that he did submit and by the Arbiters Oaths that they did accordingly determine Lowrie of Blackwood contra Sir John Drummond Eodem die SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond for love and favour and for better incouraging Sir Iohn to pay his Debt as the
Disposition bears and under Reversion of a Rosenoble to Sir Robert in his own Life Mr. John Drummond Sir Roberts appearand Heir grants a Bond to Lowrie of Blackwood whereupon he Adjudges the Land from the appearand Heir and pursues a Reduction of the Disposition as done on Death-bed In which Pursuit Witnesses were appointed to be Examined hinc inde concerning Sir Roberts condition when he made the Disposition and thereafter till his Death the sum of the Probation was that before the Disposition Sir Robert had contracted an Apoplexie whereby he remained senseless for a time but by Cure there remained a Palsie in his Tongue and a Vertigo in his Head which continued till his Death and about a year after that the sickness affected his Brain so that he lost the remembrance of Names of things and most of the Witnesses Depones that he was not found thereafter in his Judgement but that he keeped on his Cloathes and was not affixed to his Bed and went frequently and walked in his Garden and to the Court-hill half a pair of Butts off and one of the Witnesses Deponed that he came to his House alone a quarter of a mile off but that he went never to the Kirk nor Mercat nor any publick place Whereupon it was alleadged for the Defender that the Defunct continued in health at and after the Disposition and that his going so frequently abroad was equivalent to his going to Kirk and Mercat which was sufficient to eleid the Reason of Death-bed and that the Palsie being but in his Tongue albeit he misnamed things it did not import his being on Death-bed especially seing he Disponed for payment of his Debt equivalent to the worth of the Land his Disposition being to a Friend of his Name who Relieved him of his Debt his Heir not being his Son nor Descendent and uncapable to Relieve him of his Debt It was answered that the contracting of his sickness being sufficiently proven to be before this Disposition and the continuance thereof to affect his Brain in that case nothing could purge the same but his going to Kirk and Mercat which were the acts required in Law and could not be supplied by his going privatly abroad and not to any popular publick meeting and as to his Debts they could not validat the Disposition by exception though the Defender might by way of action affect therewith the Estate or Burden the Heir on whose Bond it was adjudged especially seing the Disposition buir for Love and Favour and Redeemable for a Rose-noble The Lords found the Reason of Death-bed sufficiently proven and that his private going abroad though unsupported was not equivalent to going abroad to Kirk and Mercat or publick meeting where the Disease continued to affect the Brain But they found the paying of Debts equivalent to the worth of the Land Relevant by way of exception in regard the Disposition buir to be for payment of his Debt Mr. Iohn Wat contra Campbel of Kilpont Feb. 8. 1671. SIr Archibald Campbel being Debitor to Adam Wat in a Sum of Money he did thereafter Contract his Son Mr. Archibald in Marriage with Thomas Moodies Daughter and by the Contract Thomas Moodie acknowledges the Receipt of fourty thousand Pound from Sir Archibald and is obliged for twenty thousand Merks of Tocher all to be imployed for Mr. Archibald in Fee but Thomas Moodies Daughter Dying and leaving no Children behind her Thomas Moodie did restore the Sums and there is a Discharge granted by Sir Archibald and his Spouse and Mr. Archibald bearing them to have Received the Sums and to have Discharged the same Whereupon Mr. Iohn Wat as Heir to Adam pursues Mr. Archibald to pay him the Sum due to his Father upon this ground that he having Received fourty thousand Pounds of his Fathers Means after Contracting of the Debt ought to make so much of it forthcoming as will pay the Pursuer which Action was founded upon the Act of Parliament 1621. whereby all Deeds done by Debitors in prejudice of their Creditors without a Cause Onerous are declared null and all Parties that by vertue thereof Intromets are declared lyable to restore to the Creditors It was answered for the Defender First That the Libel was not Relevant there being no part of the Act of Parliament 1621. that Incapacitats Debitors to Gift or Dispone Sums of Money or Moveables especially if the Disponer at that time be not insolvent but have a sufficient Estate for satisfying his Debt and it is offered to be proven that Sir Archibald had at the time of this Contract a sufficient Estate for all his Debt in the hands of the Earl of Argile and Glenorchie and albeit by the superveening Forefaulture Argiles Debt be insufficient it was a good Debt the time of the Contract so that there can be no ground to make a Child lyable to Restore a Portion given by a Father who was solvent 2dly Albeit the Defender could be lyable if it were clear that he had the Sum foresaid by his Father yet remaining to the fore yet if it had been lost or spent before the Intenting of this Cause he or any subsequent Estate acquired aliunde is not lyable ita est anything he has is a Wodset of fourty thousand Merks on Kilpont and the two Tochers he had viz. twenty thousand Merks from Thomas Moodie and ten thousand Merks of Legacy and twelve thousand Merk of Tocher with Sir William Gray's Daughter was sufficient to acquire the Right of Kilpont without any thing from his Father 3dly The Discharge produced cannot instruct that Mr. Archibald Received the Money because it bears indefinitly that payment was made to Sir Archibald and his Spouse and to Mr. Archibald and all of them do Discharge The Pursuer answered that the Libel was very Relevant for whatsoever might be alleadged of Bairns Portions by a solvent Father yet this being so considerable a Fortune provided to the only Son and appearand Heir if it did not make him lyable to satisfie the Fathers Debt pro tanto it were a patent way to defraud all Creditors and elude the Act of Parliament for the Father might Sell his Estate and provide the Moneys in this manner and as to the Discharge albeit it be indefinite yet it must be presumed that Mr. Archibald Received the Sums because they belong to him in Fee by the Contract of Marriage The Lords found the Libel Relevant and that the Discharge produced did presume that Mr. Archibald the Feear did Receive the Money but seing the Probation was not expresse but presumptive they allowed Mr. Archibald to condescend upon what Evidences he could give that the Money or Surety thereof was Delivered to his Father Iohn Will contra The Town of Kirkaldy Feb. 11. 1671. JOhn Will pursues the Magistrats of Kirkaldy for paying the Debt of a Person Incarcerat in their Tolbooth who was letten escape by them It was alleadged for the Town that the Person Incarcerat had escaped vi
same to her in Liferent for her Liferent use only and after her Decease to William Mauld her Son and his Heirs and another Bond bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son and obliging him to pay to the said Henry and his Heirs and after all he granted a Bond of ten thousand Merks to the Relict her Heirs and Assigneys which was made up of what remained due of all the three this Bond the Relict Assigned to the Laird of Touch who having Charged Ardrosse and he having Suspended there arose a Competition betwixt Touch as Assigney and Agnes Dundasse as Heir and Executrix to Mr. Henry William and Henry Maulds and thereupon a division of the Sums betwixt the Parties thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds of two thousand Merks which he was Addebted to the said William and of one thousand he was Addebted to the said Henry Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related and no otherways and that in the former Decreet by mistake it was exprest that the ten thousand Merks Bond was made up of the eight thousand Merks Bond and of two thousand Merks of Annualrent thereof whereas the truth was it was made up by what was resting of the two Bonds due to William and Henry which he produced cancelled of the Tenor foresaid It was alleadged for Agnes Dundasse that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds and not to Touch as Assigney by the Relict It was answered First That the said Agnes had Homologat the prior Decreet and division therein made by giving Discharges accordingly could not claim any more 2dly Another having taken a Bond in the Name of her two Sons being Bairns in her Family might lawfully alter the same at her pleasure there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children or takes Bonds from their Creditors in their Names yet these being never Delivered the Parents may Dispose of them at their pleasure It was answered for the Executrix that the alleadgeance of Homologation is not Relevant because it is Emergent by Ardrosse his Oath that the ten thousand merks Bond was not made up by the Annualrent but by the said two Bonds so that there could be no Homologation of that whereof the Executrix was excusably ignorant To the second That albeit Fathers granting Bonds of Provision in Name of their Children may alter the same at any time before Delivery Yet where they lend out the Sum to a Creditor and take him obliged to a Child in Fee that cannot be â—ltered especially where the Parent is naked Liferenter and hath not reserved a power to lift and Dispone but whatsoever be in the case of a Father providing his Children who can by no presumption be thought to have any Means yet after the Fathers Death a Mother taking a Bond in the Name of a Bairn it must be presumed to be the Bairnâ— Money coming by the Father or otherwise and the Mother having stated her self naked Liferentrix in the one Bond and having no interest in the other Bond she could not recal or alter the same in prejudice of the Children especially seing they were Infants and had not Tutors to care for them It was answered that the Mother had held count for the whole Means of the Father and so had cleared any presumption that thir Boâ—â—s could be of his Means but she Liferented the whole Estate and made up thir Bonds out of the Rents and Annualrents and denyed to be Tutrix or Pro-tutrix so that the Money being freely her own and her Children having died before her she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor being of the Tenors above-written wherein she was naked Liferenter of the one and had not so much as a Liferent of the other and that the Sums were rather presumed to be of the Bairns Means then her own seing they had no Tutor and any medling with their Means was by her self and that their Executrix could not now be put to instruct what Means they had or be countable thereupon Iohn Armour contra Iames Lands February 21. 1671. IOhn Armour pursues his Tennents of some Tenements in Edinburgh for Meals and Duties Compearance is made for Iames Lands who produces a Bond granted by umquhil George Armour bearing that George Armour as Tutor Testamentar to Iohn Armour had borrowed 500. merks from Iames Lands and obliges him his Heirs Executors and Assigneys to repay the same and thereby sets some of the saids Tenements to Iames Lands ay and while he be satisfied of the 500. merks and thereupon alleadges he must be preferred to the Mails and Duties till he be payed It was answered this Bond and Tack were not sufficient in respect he does not bind himself as Tutor nor the Pupil but his own Executor and Assigneys and so it must be the Tutors own Debt 2dly This Debt cannot burden the Pupil simply upon the Assertion of the Tutor but the Creditor ought to have seen the Sum applyed to the Pupils use and therefore must yet alleadge in rem versam Otherways if the naked Assertion of Tutors may burden the Pupils when they borrow their Name it is a patent way to destroy all Pupils Tutors being oftimes insolvent 3dly The Tutor could not set a Tack of the Pupils Lands Longer than he had Interest as Tutor Ita est the Tutory is ceassed by the Tutors Death The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove which being proven they Sustained the Tack Alexander Pitâ—â—irn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun and by him Disponed to Sir Archibald Sydserf and by him to the Pursuer pursues the Tennents for Mails and Duties who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents for which they were comptable It was Replyed that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion and was neither Countable nor Redeemable and for proving thereof produced the Decreet of Declarator in Anno 1637. against which it was objected that it was null because albeit the Libel was upon a Clause irritant whereby it is provided if the Money were required and not payed within such a time the Reversion should expire yet at the Compearance and Production there is no mention thereof albeit at the Conclusion the Decreet bears because the Libel was sufficiently proven by Production of the Writs aforesaid which can be only understood of the Writs in the Production and it is not enough only that they were libelled upon for in all Decreets the
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues â—he Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
of a thousand merks whereanent it being Debated anent the manner of Probation and Witnesses ex officio being craved for clearing the Trust by the Writer Witnesses and Communers The Lords refused to Sustain the same till first they considered the other Reason of Circumvention which was Libelled thus That the Disponer was a lavish weak person that the Disposition was elicite by his own Good-brother for a thousand merks only and that he keeped him privatly from the access of all other Friends and drank him drunk in which condition he was when the Disposition was Subscribed and that it was not Read unto him and it being excepted upon a Ratification some Weeks after at another place and the Reason of Circumvention repeated on the same Terms against that Ratification The Lords ordained Witnesses to be Examined ex officio upon the Reason of Circumvention as to both and specially whether these Writs were Read at the Subscribing and whether the Subscriber was Drunk and whether he was thereby insensible or disordered in his Reason or what were the Motives induced him to Subscribe Sir George Maxwel contra Maxwel of Kirkonnel Eodem die SIr George Maxwel of Nether Pollock pursues Maxwel of Kirkonnel for payment of a Debt of his Fathers as behaving himself as Heir by intromission with the Mails and Duties of his Fathers Lands of Kirkonnel The Defender alleadged Absolvitor because his Father was Denuded and an Appryzer Infeft and so could have no Heir in these Lands It was Replyed that notwithstanding of the Appryzing the same remained Redeemable and the Defunct remained in Possession and the Defender his appearand heir did continue his Possession and so has behaved as Heir and though he had had a Right or Warrand from the Appryzer yet during the Legal it is immistio having no other Cause nor Title It must be presumed to be granted to him as appearand Heir much more where he hath no Warrand from the Appryzers 2dly It is offered to be proven the Appryzers were satisfied by intromission and what is wanting the Pursuer offers to satisfie the same at the Bar for by the Act of Parliament 1661. betwixt Debitor and Creditor Appryzings acquired by appearand Heirs may be satisfied by the Defuncts Creditors for the sums they truly payed out by the space of ten years So that the Defender ought to condescend and Depone what he gave out and to count for his Intromission and what is wanting the Pursuer will pay The Defender answered that behaving as Heir being an odious universal passive Title any colourable Ground is sufficient to restrict it to the value intrometted with And as to the offer to satisfie the Defender of the Appryzing to which he has Right It is not competent hoc ordine for by the Act it is only introduced in favours of other Appryzers and the Pursuer is a meer personal Creditor without any Appryzing It was answered that the Narrative of that part of the Act bears it expresly to be in favours of Creditors and though the subsumption is only applyed to Appryzers yet it is not exclusive and by the common Custom satisfaction of Appryzings by intromission or present payment is ever received by Exception or Reply The Lords found that behaving as Heir is sufficiently elided by any Right or Warrand from the Appryzers as to intromission thereafter or that if the Defunct died not in Possession But that the Appryzers had then or thereafter attained Possession before the intromission But found that the appearand Heirs continuing in the Defuncts Possession without a Warrand did infer behaviour and that the offer to purge the Appryzing at the Bar was competent hoc ordine without burdening the Creditors with the Expenses of Appryzing to make the appearand Heir lyable for what he intrometted with and that the appearand Heir should assign the Appryzing whereupon the Creditor might continue Possession till he were satisfied of the sums now payed out Robert Lermont contra The Earl of Lauderdail Iuly 12. 1671. SIr Alexander Swintoun having Disponed his Estate of Swintoun to Iohn Swintoun his Son in his Contract of Marriage there is a Clause therein on thir Terms that it shall be leisom to the said Sir Alexander to affect and burden the Estate with Infeftments of Wodset or Annualrent for the sum of fifty four thousand merks for his Creditors and Bairns thereafter Sir Alexander grants a Bond of 1400. merks to the Laird of Smeatoun and declares it to be a part of the fifty four thousand merks whereof 2000. merks being now in the Person of Robert Lermont He pursues the Earl of Lauderdail as now come in the place of Iohn Swintoun by his Foresaulture to pay the sums or at least that the Lands is or may be burdened therewith because the Forefault Persons Infeftment being qualified with the said Reservation it is a real Burden affecting the Estate and Swintouns Infeftment being publick and thus qualified and burdened was as to this point the Creditors Infeftment and his being Forefault could not prejudge the Creditors as to this real Burden in a publick Infeftment granted by the King The Defender alleadged that the Libel was not Relevant for the Reservation being a meer Power of Burdening by Infeftment it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore But seing Swintoun made no use of that power albeit it might have been sufficient against Swintoun the Contracter or his Heirs It cannot militate against the King or his Donator to whom the Fee returns by Forefaulture without any Burden but what the King has consented to by publick Infeftments or Confirmations And though old Swintoun had given the Pursuer a base Infeftment it would have fallen by the Forefaulture not having been Confirmed much more when there is no Infeftment The Lords found the Libel not Relevant and Assoilzied The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others Eodem die THe Estate of Sir Iames Keith of Powburn being Appryzed by several of his Creditors they now compet for preference Mr. Thomas Lundie who led the first Appryzing was more then year and day before the rest and thereupon his Heir craved preference It was alleaged the Apprizing was null First Because it proceeded upon a Bond carrying a Clause of Requisition and the Claim of the Appryzing did not Libel thereupon so that albeit it be now produced and done debito tempore Yet the Claim was not sufficiently instructed without it 2dly The Messenger did unwarrantably continue the Court of Appryzing till another Dyet without any necessar Cause which was never accustomed before and is of very evil consequence for thereby Messengers at their pleasure may continue and weary out the Persons concerned who might propone Defenses or produce Suspensions and are not obliged to attend the pleasure of the Messenger 3dly The Appryzing was at the Beitch-hill of Cowper which is not within the Shire where the Lands ly And albeit there be a Dispensation in
the Letters that ought not to have been granted because Appryzings should only be in the head Burgh of the Shire or in communi patriâ at Edinburgh but especially seing the Warrand was obtained from the Lords of course among the common Bills without being Read or considered and so is periculo petentis and cannot prejudge the more formal Diligence of other Comprizers especially seing Lundy Appryzed of new for the same sums which will come in pari passu with the rest being within year and day It was answered that it is inherent in all Jurisdictions to continue Processes to new Dyets having keeped the first Dyet and that the Messenger by the Letters is Constitute Sheriff and there is no question but Sheriffs might and did prorogate Dyets in Appryzings and the Letters bears Warrand to fix Courts one or more and for the continuation it was but to the next day in regard of a great Speat the Appryzing being upon the hill in the open field the time of Rain and it being mâ—dica mora to the next day which will give no Warrand to an Arbitrary continuation by Messengers to what Interval they please And as for the place The Lords by Dispensation may appoint what place they see convenient and albeit the Dispensation had been of course and that therein the Clerks had failed yet the Parties obtainers of such Dispensations are secure thereby and ought not to be prejudged The Lords Sustained the Appryzing and found the Requisition now produced sufficient and found that the continuing of the Dyet for so short a time to be no ground of nullity unless the Competitors could alleadge a special cause that they did or might alleadged whereby they were prejudged by leading the Appryzing the second day rather than the first The Lords did also Sustain the Dispensation of the place and having perused the Practique produced at the Instance of the Lady Lucia Hamiltoun anent an Appryzing led at Glasgow by Dispensation They found that the Lords did not annul the Appryzing on that Ground But the Lords ordained that no Bill bearing Dispensation should pass of Course in time coming but upon special Reasons to be conâ—idered by the Lords or the Ordinary upon the Bills and that Messengers should not continue the Dyets in Appryzings but upon necessar Causes and ordained an Act to be insert in the Books of Sederunt for that effect Adam Gairns contra Isobel Sandilands Eodem die ADam Gairns pursues Isobel Sandilands as Representing her Father to pay a Debt of his and specially as behaving as Heir by uplifting the Mails and Duties of a Tenement wherein the Father Died Infeft as of Fee in so far as by Contract of Marriage betwixt Thomas Sandilands her Father and Iohn Burn and Isobel Burn his Daughter The said Iohn Burn provided the said Tenement in thir Terms viz. after the Obligements upon the Husbands part it follows thus For the which Cause the said Iohn Burn binds and obliges him to Inseft Thomas Sandilands and the said Isobel Burn the longest liver of them two in Conjunctfee or Liferent and the Heirs between them Which failzying the said Isobel her Heirs and Assigneys whatsomever By which Provision her Father being Feear and Infeft the Defender is lyable The Defender alleadged absolvitor because by this Provision of the Conjunctfee of this Tenement Isobel Burn the Defenders Mother was Feear and her Father was but Liferenter in respect the Termination of the Succession is to the Mothers Heirs yea and to her Assigneys which necessarly imports that she had power to Dispone And it is a general Rule in Succession of Conjunct-Feears that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended especially in this Case where the Right of the Tenement flowes from the Womans Father So that if there were any doubtfulness it must be presumed that the Fathers meaning was to give the Fee to his Daughter having no other Children Neither is this Land Disponed nomine dotis And the Defender stands Infeft by Precept of Favour as Heir to her Mother and thereby bruiks bona fide and her Infeftment must Defend her till it be Reduced The Pursuer answered that by the provision the Husband was Feear and the Wife was only Liferenter because though the last Termination doth ordinarly rule the Fee yet this is as favourable a Rule that in Conjunct Provisions potior est conditio masculi and though the Termination be upon the Wifes Heirs whatsomever yet they are but Heirs of Provision to the Husband and he might have Disponed and his Creditors may affect the Land which holds in all Cases except the Lands had been Disponed by the Wife her self without a Cause onerous But here the Husband is first named and it is but a small parcel of Land beside which there is no other Tocher So that though it be not Disponed nomine dotis Yet being Disponed for the which Causes it is equivalent and in the same Contract the Husband is obliged to provide all Lands that he shall Acquire or succeed to to himself and his Wife the longest liver of them two in Conjunct-fee or Liferent and to the Heirs between them Which failzying the one half to the Husbands Heirs and the other half to the Wifes Heirs and their Assigneys and it cannot be imagined that the meaning of these Clauses was that the Fee of the Mans Conquest and Succession should not be all Constitute in himself but that the Wife should be Feear of the half And in like manner the Fathers meaning is clear because the Clause bears not only in Contemplation of the Marriage but for sums of Money received by the Father which albeit left blank in the Contract yet it cannot be thought that in such a Narrative he intended to make his Daughter Feear And as for the adjection of her Assigneys it is only ex stilo for Assigneys is ever added after the last Termination of Heirs and does always relate to all the Feears and would extend to the Heirs of the Marriage their Assigneys as well as to the Wifes Heirs failing them Likeas Assigneys isin the same way adjected to the Clause of Conquest wherein there is no ground to imagine that the Wife is Feear and both bears the Husband and Wife to be Infeft in Conjunct-fee or Liferent The Lords found that by this Provision and Infeftment thereon the Husband was Feear and the Wife only Liferenter and found no necessity to Reduce the Defenders Infeftment as Heir to her Mother not proceeding upon a Retour but a Precept of Favour But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour but only for making forthcoming her intromission quoad valorem But it was not Debated nor Considered whether as bonae fidei Possessor by a colourable Title being Infeft as Heir to her Mother she would be free of the bygones before this
if it has been a poinding of the Ground February 13. 1669. Mclellan contra Lady Kilcuâ—bright An Infeftment to be holden of the Superiour not Confirmed waâ— found null albeit it was only granted for Security of â— Wiâ—es â—iferent conform to her Contract of Marriage Iuly 2â— 1669. Gray contra Ker. An Infeftment of Annualrent was found extinct by the Annualrenters intrometting with the Annualrents of the Lands equivalent to the principal sum February 4. 1671. Wishart contra Arthur An Infeftment was found null by reply without Reduction whereby a Woman was served Heir to her Mother in a Teneâ—entâ— in which her Mother and Father were infeft in Conjunct â—ee albeit she had probable Ground to think her Mother was Feear seing her Father was found to be Feear and that she was not 〈◊〉 〈◊〉 by Retour but by precept of favour here seven years possession was not alleadged to give the benefite of a possessory judgement Iuly 1â— 1671. Gairns contra Saâ—â—ilands â— Infeftment Vide base Infeftment INHIBITION was found not to Reach Lands acquired after it lying in another jurisdiction then where it was published and Registrate Iuly 18. 1662. Smeateun contra An Inhibition was found to be valide to reduce or declare against the Person Inhibite not only for the Lands he had the time of the Inhibition but these acquired thereafter December 15. 1665. Eleâ—s contra Keith An Inhibition of Teinds was found sufficiently execute by a Sheriff in that part and not by a Messenger being direct to Messengers Sheriffs in that part which was sufficient to interrupt tacit Relocation Ianuary 27. 1666. Earl of Eglintoun contra Laird of Cunninghamehead Inhibition being used on a Sum was found sufficient to reduce and that the Inhibition and Reduction thereon could not be purged by payment of the sum whereon it proceeded with Annualrent and Expenses seing there was a supervenient appryzing upon the Sum which was now expyred February 24. 1666. Grant contra Grant Inhibition was found to extend to Rights acquired after the Inhibition but not to a Wodset acquired after and Renunced upon payment without abiding an Order albeit Renunciations be by the style of the Inhibitions prohibite yet they are but as Discharges of â—eretable debts or annualrents against which Inhibitions operate not to cause them pay again Iuly 16. 1667. Eleis contra Keith and Steuart Inhibition was found to extend to Lands acquired after the publication thereof lying in the Shire where it was published February 27. 1667. inter eosdem Inhibition on a Dependence was found to take no effect whâ—re no judicial Sentence followed but a Transaction on arbitriment December 16. 1668. Frazar contra Keith An Inhibition was found to reduce a disposition though its date was anterior to the Inhibition as to some Creditors whose Names and sums were filled up in it by another hand which was presumed to have been blank and filled up aâ—ter ter Inhibition unless the contrary were proven by Witnesses above exception Ianuary 15. 1670. Lady Lucia Hamiltoun contra Creditors of Montcastle An Inhibition was found null because the Executions thereof bear not a Copy to have been left at the Mercat Cross where it was published February 12. 1670. Naper contra Gordoun of Grange Inhibition of Teinds was found not to give Right to draw the Teind without Sentence where the Hereâ—or had any colourable Title Ianuary 27. 1665. Barefoord and Bennistoun contra Lord Kingstoun Inhibition was found Relevant to Reduce the Rights of Creditors albeit there was a Disposition to two Parties for themselves and for the behove of other Creditors under-written after which there was a large blank filled up with an other hand in which the Creditors in question were insert which blank so filled up was holden as after the Inhibition and a prior communing to take in these Creditors and undertaking their debts by the persons to whom the Disposition was made was not Sustained to be proven by their oaths or by the oathes of Witnesses but only by Writ or oath of knowledge of the Pursuer Iuly 8. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon and others Inhibition being pursued upon to Reduce and the Pursuer offering to accept the Sums in the Inhibition cum omni causa albeit there was an expyred Compryzing led upon the Sums the Defender craving that the Pursuer would assign the Sums The Lords found that the Pursuer could not be compelled to assign the same in respect the offer was only to take satisfaction and Renunce whereby the Cautioner might not be distrest Inter eosdem Inhibition was found null by Declarator because the Executions as they were Registrate did not bear a Copy given to the party inhibite albeit the publication at the Mercat Cross bear a Copy affixed and that the Messenger had added upon the Margent the delivery of a Copy which was found an essential requisite in the Execution and that not being Registrate with the Execution the same was null and could not be supplyed by proving by the Witnesses insert thaâ— a Copy was truely given against a singular Successor who had bought the Lands for a just price Iuly 28. 1671. Keith contra Iohnstoun â—INTERDICTION against a Defunct was found only to extend to the Lands lying within the lurisdiction where it was published and Registrate but not to the other Lands nor to Heirship moveable or other moveables so that the Heir succeeding therein is lyable notwithstanding February 11. 1662. Ramsay of Torbane contra Mcclellaâ— Interdiction albeit it be not Sustainable by way of Defense to delay a pursuit yet it was sustained by way of Reply seing the pursuer might delay himself â—â—d that otherwise he behoved to quite the Possession and then Reduce to recover it again February 13. 1663. Lockhart contra Kennedy Inâ—erdiction of a Man by â—ond bearing he should not sell nor dispone without consent of his Wife on the Narrative of his facility whereupon Inhibition was used was found not to stand as an Interdiction being inconsistent to bind a man to the direction of his Wife but that it stood in so far as might be interpret an obligement in the Wifes own favours for her proper interest to secure her an Aliment according to her quality February 27. 1665. Laird of Milntoun contra Lady Milntoun Interdiction was found to give interest to Appryzers or Adjudgers from the Heir of the Person interdicted to reduce any voluntary Disposition thereupon albeit they had no special Title to the Interdiction but had only appryzed the Lands of the person Interdicted cum omni jure and albeit there was an anterior Appryzer the benefite of the Interdiction was found appropriat to neither but common to both February 20. 1666. Lord Saltoun contra Laird of Park and Rothemay Interdiction was found not to have any effect as to Moveables or personal Execution by may of Exception without Reduction Iune 20. 1671. Crawfoord contra Hallyburtoun INTERRVPTION of the Prescription of a common Pasturage
who behoved to serve to the last they saw infeft and therefore the Lords reduced Iuly 7. 1663 Mow contra Dutches of Balcleugh A Retour being called for to be reduced as proceeding without warrand or probation and nothing being produced but the Brieve Executions and Service but no Witnesses having deponed on the propinquity of Blood and none of the Inquest having declared so on proper knowledge The Lords would not therefore annul the Service but ordained the Inquest to be cited to give their oaths on what ground they served February 24. 1665. Mercer of Aldie contra Cowan Retoures of Heirs are not reduceable unless they be quarrelled within 20. years by the special Act Parl. 1617. thereanent which was only found to relate to Retoures deduced since that Act but by the general Act of Prescription 1617. the action of Reduction of Retoures quando ecunque deduced prescribes if not quarrelled within 40. years November 28. 1665. Young contra Iohnstouns Vide Heir A Retour of five years possession of a Foâ—efaulted person was not sustained to be Reduced by way of ordinary Action but by a Summons of Error in Latine under the Quarter-Seal though such Reduction were oft timeâ— allowed before Iune 28. 1667. Hume contra Creditors of Kellâ— A REVERSION granted by a person obliging a buyer to dispone to the Seller was found to extend to the Disponers Heirs though not exprest seing the ordinary Clause of paying the sum in the Disponers own time was not adâ—ected and it was held but as an omission non dedita opera that Heirs were not exprest Ianuary 9. 1662. Earl of Murray contra Laird of Grant A Reversion was not â—ound null not being Registrate before 1617. by the Act 1555. which was found in deâ—uetude Iuly 5. 1666. Earl of Hume contra his Wodsetters A Reversion bearing payment at the Wodseâ—â—ers House at London was â—ound satisfied by Consignation at Edinburgh where his Successor dwelt February 1. 1667. Creditors of Murray contra Murray A Reversion to a person and the Heirs of his Body was found â—ufficient to redeem by that person albeit he had before asâ—igned the Reversion and disponed the Land to another February 1. 1667. Earl of Tillibardin and Sir Iohn Drummoâ—d contra Murray of Ochterâ—yre A RIGHT REAL of Lands was found not burdened with a provision in the Disposition that the Lands should be affected with such a sum against an Appryzer or singular Successor Ianuary 25. 1664. Colquhoun contra Adamson But thereafter this case being considered and the Clause for payment in the Infeftment the Father who granted it being in possession it was â—ound relevant against the singular successor till it were performed November 7. 1606. Inter eosdem SALMOND FISHING in a River was found not to impede the letting out of a Loch into that River though hurtful to the fishing as was the Lords opinion but because it was a reference from the Parliament who might make a Law thereanent The Lords granted Commission to visite before answer Iuly 1. 1661. Mayor of Bervick contra Laird of Hayning Salmond fishing by Câ—uives was found valide by an Infeftment to a Burgh cum piscationibus piscariis without special mention of Salmond fishing or Cruives cled with immemorial possession and which Cruives the Burgh was suffered to change from one part to another within their own bounds being without preâ—udice of the other fishings above or putting them in worse condition then they were before with the former Cruives and being but one Cruive Dyke whereof the Lords would not determine the height or whether it should be stopped or not but seing they possessed immemorially the former Dike this was to be made conform in all points and found that the Hecks ought to be three inches wide and not five and that the Act of King 〈◊〉 the 4th bearing five was an Error in relating a former Act of King Davids there being no such Act amongst his Acts but there being one Act of King Alexanders amongst his Acts for three inches it was â—ound that that should have been related as the Rule and that Saturndays slop should be keeped of all the Cruives and not of one only in the midle stream by opening an eln in each Cruive pulling up the Hecks thereof and that from Saturnday at six a Clock till Munday at Sun rising and ordained the common custom to be proven the hinc inde concerning a constant open midle stream which was not repeated in King la. 6. his Act nor had the Lords respect â—o the Ratifications of these Acts purchased in the Parliament 1661. being impetrate by private parties not Printed or past the Articles or done in the stile of a general Law Ianuary 26. 1665. Heretors of Don contra the Town of Aberdene SATISFACTION of an Appryzing and of the sums whereupon the same proceeded was admitted by Exception upon what sums the apparent Heir to whose behove the right returned payed out therefore and that by intromission and present offer of what remained after compt and reckoning albeit the pursuit was not upon the Appryzing but a Reduction on an Inhibition upon the Bond whereupon the Appryzing proceeded Iune 28. 1671. Forbes of Watertoun contra Shein Vide Appryzing A SEASINE on an appryzing within Burgh was sustained though not given by the Baillies but by the Provest nor by the Town Clerk but by another Nottar because the Baillies and Clerk were excluded by the English for the Tender Iuly 3. 1663. Thomson contra Mckitrick A Seasine not registrate of a Liferent to a Wife was found valide against the apparent Heir of the Granter though brooking by a prior Disposition seing it contains a power to the Father to dispone and grant annualrents February 27. 1667. Countess of Carnwath contra Earl of Carnwath A Seasine propriis manibus of a Husband to a Wife who had no Contract of Marriage nor other provision and had disponed a former Liferent to the behoof of the Husband was found a sufficient Title without a warrand or Adminicle in writ in respect of the Marriage and Duty of the Husband to provide his Wife Iune 19. 1668. Relict of Garigs contra Wallace of Garigs A Seasine within Burgh under the Clerks hand was sustained without necessity to 〈◊〉 it was regiâ—â—rate in the Town Books in reâ—pect of the Exception in the Act anent Registration of Seasines within Burgh not requiring them to be registâ—ate in the Towns Books Iune 30. 166â— Burâ—et contra Swan The â—ike though the Seasine was by the Sherifâ— Clerk there being no Town Clerk in Office Iuly 21 1666. Thomson contra Mckiâ—rick A Seasine propriâ—s manibus albeit sustained to a Wife without one Adminicle who had no Contract of Marriage and had at that time quite her loynture by a former Husband to the Husbands Creditors yet two of the Witnesses being positive that they were never Witnesses to any Seasine given to her a third deponing he remembred not a â—ourth abiding by the
Trade in the River of Clyde without any such Burden whereof no mention is made in the foresaid Contract and being charged for in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time and the Entry decerned to be free at either Town and therefore they alleadged that their Priviledge of Trading as a free Burgh ought to be declared and they assoilzied It was answered for the Town of Dumbarton that they had good Right to these Duties by His Majesties several Infeftments granted to them for the King having power to impose petty Customs not only in Ports built and preserved by Industry but in Stations and Rivers Creiks and Bays as is the Custom of all Kings and Princes such are the Customes upon the Rivers of Rhyne Garonnie Thaimes and others to all Ships that anchor there or pass that way and whereof there are severals in Scotland as the Tunnage due to Edinburgh of all the Ships breaking bulk at Leith and the petty Customs of Alloway Cockenie and other places 2ly Albeit the Kings grant were not sufficient alone yet being cled with immemorial or 40. years Possession instructed by Witnesses and the Books of Entry it is more then sufficient It was answered for Glasgow to the first That petty Duties imposed for Ports having a mutual Cause may be appointed at any time by Kings and Princes it being free to these who are burdened therewith to come in to that Port or not they also appoint petty Customs to be payed to any City for Goods Imported and sold there in consideration of the upholding of their Harbours and Mercats as the Tunage of the Harbour of Leith or anchorage at any Shore where anchorage is casten upon the Land or any Goods laid out upon the Land or where Imposition for anchorage or other Dues in a River or Station hath been approven by long Custom and acquiescence but where Burghs Royal have not only by their priviledge of Trading but by immemorial Possession prescribed a liberty of making use of Stations without burding no Right granted or Impetrat by any Party in prejudice thereof if it be quarrelled before Prescription can take away the liberty of Trading Nor is the Kings Gift any way to be understood but periculo petentis and Dumbartons second Charter did expresly bear that these petty Customs were due and accustomed before so that the Kings express meaning is not to Gift them de nova or to impose a servitude in their favours upon a far more eminent City then themselves And as to the Point of Possession nothing is proven thereanent till the year 1616. and then it is neither universal seing more Entered at Glasgow then at Dumbarton nor is it peaceable nor voluntar nor is it continual but interrupted and albeit it were uninterrupted yet it is but by single Persons which cannot infer a Servitude upon the Burgh and if the Kings Gift be periculo petentis and be surrepticiously impetrat upon a false Narrative no Possession can validat it as no Possession of it self without a Title could infer such a Servitude The Lords having considered the Depositions of the Witnesses Books of Entry and the hail Writs produced they found that the alleadgence against Dumbartons Declarator as founded upon their Charters without Relation to Possession was not Relevant and that the first Charter could not extend to these particulars not being exprest unless it had appeared that they had been in immemorial Possession before the second Charter and the interruption by the Suspension raised by Glasgow and the Lords Interlocutor thereuponâ— in Anno 1611. for albeit Immemorial or 40. years Possession immediatly preceeding might have presumed Possession continually before since the first Charter yet they found that Interruption or Suspending that particular in question and no alleadging of Possession by Dumbarton then but on the contrair an Interlocutor as to the liberty of Entry at Glasgow takes off that Prescription And likewise they found that there was nothing proven as to 40. years Possession save only 13. sh. 4. d. for the Anchorage of each Ship and 8. d. for the use of Dumbartons Measures of Salt for each Boll and seing that Possession was also proven to be Interrupted in that several Ships of Glasgow Resisted and came away free and that they had several Salt Measures of their own there Therefore they found the Charter not validat by 40. years Possession uninterrupted and Assoilzie from Dumbartons Declarator and Declared upon Glasgows Declarator of Liberty Earl of Panmuire contra Parochiners Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick pursues for a part of the Teinds thereof It was alleadged absolvitor because they had possest their Land 40. years free of Teind to any body and by the general Act of Prescription all Right prescribes not pursued within 40. years and so doth the Right of this Teind It is answered that the Right of Teind is founded on Law and not upon any particular or privat Right and therefore albeit in the case of Competition of private Parties pretending Right to Teinds One Right may be excluded by another yet the Teinds themselves must always be due except where the Lands are decimis inclusis and did belong to priviledged Church-men of old such as the Cistertian Order or Templars Manse or Gleibs The Lords Repelled the Defense in respect of the Answer for they thought albeit the bygones of the Teind preceeding the 40. years might prescribe yet the Right of Teind could not more then Customs could prescribe if they were neglected to be Exacted for fourty years or a Feu-duty Ker contra Hunter and Tennents of Cambo Feb. 8. 1666. THe Tennents of Cambo raise a Double-poinding against Ker and Hunter both being Infeft in Annualrents base where the last base Infeftment within a month of the former being cled with Possession by a Decreet of poynding the Ground a year after both and no Diligence on the first The Lords preferred the last Infeftment as first cled with Possession It was further alleadged that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent It was answered that there was Write there required viz. a Renunciation of the rest and till that was done est locus penitentiae The Lords considering the Case found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith it was pactum liberatorium and there was not locus penitentiae but if it was a Promise to accept other Lands or the Property of a part of the Lands burdened there was locus penitentiae till the mutual Rights were subscribed whereby the one Party disponed the Property and the other the Annualrent The Heretors of Johns Miln contra The Feuars Feb. 9. 1666. THere being an old Thirlage of a Paroch which was a part of the Barony of Dumfermling to Iohns Miln the Feu of the Miln being
first granted by the Abbot of Dumfermling and the Feu of the Land thereafter there is a Decreet in Anno 1610. pronounced by the Chancellor as Lord of the Regality decerning all the Feuars to pay the five and twenty Curn of all Grains that they brought to the Miln and a greater of that they Abstracted The Feuar of the Miln pursuing for Abstracted Multures and for instructing the Quota producing this Decreet It was alleadged for the Defenders that they offered them to prove that past memory of man at least 40. years bygone they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure and so can be lyable for no further they having prescribed their liberty from any further 2ly That no respect ought to be had to the Decreet in so far as it Decerns a greater quantity for the Corns Abstracted then for these grinded which is without all Reason especially seing this is but a Burn Miln and not sufficient for the Thirle 3ly They offer them to prove that the Miln was insufficient the years pursued for and no ways able to serve them and the rest of the Thirle as being but a Burn-miln dry in Summer and not having Water enough in Winter It was answered for the Pursuer to the first that they offered them to prove they were in Possession of the Multure Lybelled within these 40. years at least that any lesser Duty was accepted by a particular Paction for a time only To the second opponed the Decreet standing against which there has neither been Suspension nor Reduction nor any ground for the same for its like the coming to the Miln frees them from a greater quantity for abstraction And seing the Quota is but the five and twenty Curn far below the ordinar Thirle Multures it was very reasonable that the samine being abaited to a less quantity they should pay a greater if they came not As to the insufficiency of the Miln it was answered non Relevat unless it were through the default of the Pursuer or his Millers for they being astricted to a Burn Miln what defect is therein without the Pursuers fault cannot louse the Restriction The Lords found the Replys Relevant unless the Defenders condescended upon an insufficiency through the Pursuers fault Here occurred to the Lords whether the Feuars could by Possession prescrive their liberty as to a lesser Multure seing the Possession of a part of the Multure was sufficient to exclude Prescription as to the whole some thought if the Multure had been a certain Quota in the Infeftment of the Miln Possession also not of the hail would hindred Prescription of any part but if the Infeftment of the Miln was only with the Multures used and wont and that the speciality was but by a Decreet as the use and wont that in that case use and wont might change Others thought not but in respect the Pursuer insisted not on that Point but offered to prove Possession conform to the Decâ—eet within these 40. years The Lords decided not that Point Here also it was alleadged that by an Act of the Court of Dumfermling the Defender consenting at least present it was Enacted that such of the Defenders as could not be served might go to other Milns The Lords found this alleadgence only Relevant that it was by consent of the Pursuer or his Authors but left it to be the Defendersâ— after production to qualifie what way the consent was given but that his presence and silence was not enough The Collector of the Vaccand Stipends contra Parochioners of Mayboll and Girvane Feb. 10. 1666. THe Collector of the Vaccand Stipend having charged the Heretors of Mayboll and Girvane for the Stipend due by them the year 1663. They Suspend and produce the Ministers Discharges who served these years and alleadged they made payment bona fide before this Charge It was answered they were in mala fide by the Act of Parliament of the last Session of Parliament declaring the places of Ministers Entred since 1649. to be Vacant if they had not obtained Presentation and Collation conform to the Act. It was answered that the foresaid Act was not simple but conditional if they had not obtained Presentation and Collation and there was nothing oblieging the Parochioners to enquire whether they had done that which by the Law they were oblieged to do but seing there was no Charge against them by the Collector of the Vaccand Stipends and that the Patron or Ordinar did not present another but suffered the then Incumbents to preach all that year they were in bona fide to think that they might pay them for the time they Served It was answered there was a Decreet produced against the same Ministers for the year 1662. and therefore they could have no Right to the year 1663. The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer because the Decreet was not against the Heretors and was but obtained in 1664. after they had made payment of the year 1663. The Minister of North-Leith contra Merchants of Edinburgh Eodem die THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring of dry Fish Killing and Ling at Leith and New-haven to pay twenty shilling of the Last of Herring and the twentieth part of the Killing and Ling. It being alleadged that such a burthen could not be allowable because the Teinds was taken where the Fish was taken 2ly That it could only reach the Parochioners of North-leith not the Merchants of Edinburgh And 3ly That they had frequently Traded free of such a Burden The Lords having ordained the Pursuer to adduce Evidences by Writ or Witnesses what Possession they had and the Defenders what liberty they had and having heard the Testimonies of the Witnesses with an old Decreet for the same particulars but not against the Merchants of Edinbâ—rgh nor for dry Fish they found 40. years Possession proven of the said Burthen and therefore Decerned The Laird of Wedderburn contra Wardlaw Feb. 13. 1666. WEdderburn pursues a Reduction of a Feu granted to Wardlaw ob non solutum canonem by vertue of a Clause irritant in the Infeftment The Defender offered to purge by payment at the Bar and alleadged several Decisions that it hath been so allowed It was answered that was only the case of a Reduction upon the Act of Parliament declaring Feus null for not payment of the Feu Dutie but where there is an express Clause irritant in an Infeftment that cannot be purgeable at the Bar else such Clauses should be useless seing without these de jure the Feu Duties behoved to be payed at the Bar or otherwise the Feu annulled The Lords found that there was a difference betwixt a Clause irritant and upon the Act of Parliament and so would not admit of purging at the Bar simply unless the Defender condescended upon a Reasonable Cause ad purgà ndam moram and
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâ—ens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto â—gritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâ—ing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
Die UMquhil Dumbaith having Disponed several Lands to his Oy Iohn Rosse Brother to Kilraick the Laird of May Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition and insisted upon this ground that the Disposition was false in the Date and that the Defunct was aliâ—it the time it appeares to have been subscrived and therefore is false in all It was answered that there was only an Error in the Date in respect the same Right having been conceived formerly in formerly in favours of another Dumbaith gave order to draw it over in favours of the Defender verbatim and the Writer ignorantly Wrote over the Date as it was in that first Disposition which can no ways annul the Writ especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith and them as Witnesses when he was in his Liege-poustie against which no alledgeance of alibi by other Witnesses not insert can be respected This having been Dispute in the English time the Witnesses were Examined before answer by three of the Judges and now the Cause was Advised The Lords found the Defense relevant to elide the Improbation that the Writ was truly subscribed before the Defunct was on death-bed and found the samen proven by the Witnesses adduc'd and thereafter assoilzied Laird of Rentoun Iustice Clerk contra Lady Lamberton Eodem Die THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence and the Pursuer being now Restored he is lyable to Count to him in the same manner as to the Estates not only for his Intromission but for his Negligence whereby he suffered other Persons publickly and avowedly to cut the Pursuers Woods of a great value and did no ways stop nor hinder the same nor call them to an Account 2ly He himself Intrometred with the said Wood at least others by his Warrand which Warrand must be presumed in so far as he having a Commission and oblidged for diligence did not only suffer the Wood openly to be cutted but applyed a part thereof to his own use and was oftimes present when it was in cutting by othersâ— The Defender answered First That he could never be lyable to the Pursuer for his Omission because his only Tittle was his Right of Property whereby the Defender was lyable to Restore to him what he had Intrometted with and not Counted for but for his oblidgement to do Diligence it was only personal granted to the Estates and albeit they Restored the Pursuer to the Estate they never Assigned him to that Obligation 2ly The Defender is secured by the Act of Indemnity except in so far as he Intrometted and did not duely Count as was found by the former Interloquitor in this Cause and as to the second member It was answered that the Defender being only Countable for his Fathers Intromission not Counted for albeit he had given warrand to others except he had received satisfaction from them it is not his own Intromission 2ly Warrand or Command is only Probable by Writ or Oath and no way by Presumption upon such Circumstances which Presumptions are also taken off by others more pregnant viz. That these Woods were cutted by Persones in Power and Interest in the Countrey who had no Relation or Interest in the Defenders Father whom he was not able to stop or hinder and most part thereof was Clandestinly cut and stolen away by meaner Persons It was answered for the Pursuer that he being Restored Succeeds in place of the Estates and as what is done by a negotiorum gestor without Warrand is profitable for these for whom he negotiats so must this be which was done by the Estates As to the Act of Indemnity the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed As to the second member the Pursuer answered that what was done by others by the Defenders Fathers Commission must be his Intromission seing it is all one to do by himself or by another and seing it cannot be called Omission it must be Intromission 2ly Though Command or Warrand is ordinarly Probable by Writ or Oath Yet there are casus excepti as whatsoever is done for any Party in his presence is by all Lawyers said to be ex mandato inde oritur actio mandati non negotiorum gestorum so that the presence or tollerance of a person not only having Power but being oblidged for Diligence must much more infer his Power or Warrand And albeit he was not alwayes present yet the Deeds being publick and near the place of his abode it is equivalent The Lords inclined not to sustain the first member both in respect of the Act of Indemnity which bears in it self to be most amply extended and in respect that the Pursuer had no Right to the Personal Obligation or Diligence but as to the second member the Lords were more clear as to what was done in the Defenders Fathers presence but in respect it was more amply proponed The Lords before answer ordained Witnesses to be Examined by the Pursuer whether or not the Woods were publickly cutted and whether or not Lambertoun was at any time there present and apply'd any thereof to his own use and Witnesses also for the Defender to be Examined whethâ—r a part was cut Clandestinly and other parts by persons having no relation to Lambertoun and to whom he used any Interruption Eodem die THis day there being a Query formerly given by the Lord Thesaurer whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion before the Justice General so that the Justice might proceed against them though absent by putting the Dittay to the Tryal of an Assyze and taking Witnesses thereupon and upon Probation to proceed to the Sentence of Forfaulture or whether Probation in absence could not be admitted but before the Parliament There were Reasons given with the Query for the affirmative viz. That there was a special Statute for Forfaulture of Persons after their death in which case they were absent multo magis when they were living and contumacious 2ly Because by the Civil Law albeit Probation especially in Criminals cannot proceed unlesse the Defender be present Yet the chief Criminal Doctors except the case of lese majesty as Clarus Farenatius and Bartolus 3ly That the Parliament proceeds to the Forfaulture in absence not by their Legislative Authority but as a Judicature and what is just by them it is just also by the Justice The Lords demured long to give their Answer upon thir Const â—erations that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party and that there had never
the Contract may be yet Examined to clear the meaning of the Clause 2dly Albeit the Clause could not exclude her from a third of Money which is expresse therein yet not from a third of Moveable Goods and Geir which is not exprest and albeit the Clause bears and others it can only be understood of Rights due by a stated Security and the intent of the Clause has only been to substitute the Bairns of this Marriage Heirs of the Conquest and to exclude the Bairns of any other Marriage but did neither exclude the Father but that he might dispone on his Moveables albeit the Clause expresseth him but Liferenter thereof neither does it exclude the Mother from the third thereof And there was adduced a Decision in the Case of the Lady Oxenfoord wherein albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce and third of all Lands Annualrents and others yet that was not found to exclude her from a third of Moveables but only from a Terce or third of Heretable Rights It was answered for the Children that their Mother having consented by the Contract of Marriage that all Conquest during the Marriage should be provided to their Father in Liferent and to them in Fee she had excluded her self as clearly and effectually as if she had Renunced her third thereof or accepted of her Jointer in full satisfaction neither is there a necessity that these words must always be used nor is this alleadged as a consequential Renunciation but as an expresse Obligation or Destination of the Husband consented to by the Wife which must have its native effect and so the Children must be Feears of the whole Conquest and therefore the Wife cannot be Feear of a third of it and albeit moveable Geir be not exprest the generality others must necessarily comprehend them being of the same nature with Sums which are exprest and may be Moveable and of less importance then they and the case wholly differs from that of the Lady Oxenfoord wherein nothing but Heretable Rights are exprest and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Moveables but here Sums are exprest and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods which is the greatest part of their Estate as to the meaning of the Parties clear Clauses cannot be enervat upon that ground and as for any thing exprest by the Husband It was on Death-bed in a great Fever whereof he Died and no Testament followed The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Moveable Sums or Moveable Goods during the Marriage which could be understood to be meaned to be put upon Security at any time but that it did not exclude her from a third of the Houshold Plenishing Charles Casse contra Sir Robert Cunningham Ianuary 26. 1671. CHarles Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority pursues a Reduction of the same Disposition upon Lesion and condescends upon his Lesion thus that being Infeft for security of fourty thousand Merks and in an Annualrent effeirrand thereto whereof there were many bygone years Annualrent resting and yet he got only fourty thousand Merks for all The Defender alleadged Absolvitor because the Pursuer was satisfied of all his bygone Annualrents in so far as he having Apprized for five years Annualrents preceeding the Apprizing which was in Anno 1655. he had entered in Possession by vertue of the said Apprizing of the whole Lands of Achinhervie and so is Comptable therefore according to the Rental untill he cease to Possesse the same which will fully satisfie all his bygones so that he will have no Lesion 2dly He had not only in his Person the said Apprizing but the Infeftment of Annualrent upon which he being preferred in a double Poinding and excluding other Parties having also real Rights he is thereby obliged to do Diligence and be Comptable not only for what he intrometted with but for what he ought to have intrometted with The Pursuer answered that he was content to Compt for what he had Intrometted with but upon neither ground was he obliged to Compt for any further especially as to his Apprizing albeit Law and Custom had oblidged him to Compt for the whole Rental till the Apprizing were satisfied yet he could not be Comptable but for his Intromission after he was satisfiedâ— for then he had no title in his Person and it is clear that any Intrometter without a title is only lyable for his Intromission and all Parties having Interest might have hindred him to have Intrometted after he was satisfied and albeit a Tennent or Factor after the expiring of the Tack or Factory may be Comptable for a full Rental yet that is because they have a title per tacitam relocationem or tacitam commissionem but after the extinction of the Apprizing then no title remains and neither is he lyable as an Annualrenter even though he did exclude others to do any Diligence because all the effect of an Annualrent can only be to distresse the Ground or Poind the Tennents for as much of their Rent as is equivalent to the current Annualrents after which any other Party having Right may liâ—t the superplus and in this case the Annualrenter hath not been preferred as to any bygone Rents but only in timecoming and for his current Annualrents and the bygones are appointed to be brought in Accompt which was never determined The Defender answered that it were against all Reason that an Apprizer after he is satisfied should be in better condition then before he is satisfied and so as long as he meddles he must Compt by the Rental and it is his proper part who knows when he is satisfied to relinquish the Possession which other Parties cannot know till by a long Process of Compt and Reckoning it be determined and it were most absurd that in the mean time he should continue in Possession and though the Rents did in a great part perish he should not be Comptable therefore but only for what he actually lifted The Lords found the Pursuer as Apprizer Comptable according to the Rental not only for Intromission but Omission both till the Apprizing be satisfied and thereafter for all years of which he lifted any part but found not the Annualrenter lyable for Diligence albeit he did exclude others but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past to be preferred to the whole Rents till these bygones were satisfied that not being the case here in question In this Cause it had been formerly alleadged that the Pursuer after his Majority had Received a part of the price of the Lands in so far as having in his Minority granted a Commission to Mr. Iohn Smith one of his Curators
to uplift all Sums due to him and he having uplifted a part of the price of the Land from the Defender and bonds for the rest the Pursuer after his Majority had by his Discharge produced Received from his Curator and Factor the said Money and Bonds and Discharged him thereof and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions whereby the Pursuer hath approven and Homologat the Disposition of the Land made by him and his Curators which he now quarrels The Pursuer answered First That the Defense is not Relevant for Homologation being a presumed or conjectured Consent not by Word or Writ but by Deeds done which import the adhering to the Disposition quarrelled it cannot be inferred by any Deeds but such as can have no other intent or purpose consistent with the Rejecting or disapproving the Disposition but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction for the Pursuer knowing that he could not be restored against his Disposition unless he did restore what was Received by his Warrand might justly take up the same from his Factor that he might be in capacity to Consign the same at the Bar as if a Minor having Bought Lands to his Lesion and having Wodset a part of the same he might after his Majority Redeem the Lands Wodset by himself which although it behoved to proceed upon the Disposition as his Title yet it being a Deed necessar to purge the Wodset and repone the Disponer to his own Land free thereof it would never importan Homologation or if he had in his Minority excambed Lands and Wodset a part of the Lands he acquired thereby the Redeeming or purging of the Wodset after his Majority would import no Homologation so neither can any Deed import Homologation which upon any account can be consistent with the annulling of the Right quarrelled upon Minority 2dly This Dicharge does bear expresly relation to Mr. Iohn Smiths Accompt of Intromission Subscribed at the same time and bears that the Discharge should be alse sufficient as if the Accompt were insert Ita est in the Charge of the Accompt wherein only mention is made of the Sums payed by the Defender there is an express Reservation that the Accompt shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition And as to that Clause in the Discharge that the Curators and Factor had done faithfully It relates only to their Intromission and not to their Omission and albeit it had born simply that they had acted faithfully that can only import that they had not acted Fraudulently and that they had done for the Minor what they conceived best but does not import that they had acted providently and skilfully so that the Minor may still Reduce their Deed. The Defender answered that his Defence was most Relevant being founded upon the Pursuers consent after his Majority for consent may be Adhibite not only by Word or Writ but by any Deed importing the consent as if a Minor giving a Bond in his Minority should pay a Terms Annualrent thereof after his Majority Or if a Minor intrometting with his Fathers moveable Heirship or Rents of his Lands in his Minority should continue to intromet for one Term or one Point further after his Majority in neither case would he be restored and yet such Deeds might be consistent and might be done to other intents as if his payment of the Annualrent did bear leâ—t before his Reduction he might be Distressed or that he continued his Possession lest the Rents or Goods might perish to the dammage of his party Yea though these were expresly mentioned in his Discharge and his Reduction were reserved it would be protestatio contraria facto and would not free him so neither can the Reservation in this accompt though it were repeated in the Discharge be sufficient especially seing he might have caused the Factor Consign the Money in the Clerks hands that it might be restored at the Discussing of the Reduction So that inconsistent Reservations or Protestations operate nothing 3dly The charge of this Accompt wherein only the Reservation is mentioned is a louse sheet of Paper subscribed with another Hand than the Discharge and has neither Date nor Witnesses and so cannot instruct that this is the very Accompt mentioned in the Discharge The Lords did not determine the Point of Homologation but before answer ordained the Curators and Witnesses in the Accompt to be Examined upon Oath whether the Charge produced be the same that was subscribed abinitio bearing the said Reservation But they inclined that the Reservation would take off the Homologation and would not be void as contraria facto Keir contra Nicolson Ianuary 28. 1671. JOhn Keir as Assigney by the Earl of Mar to some Feu-duties pursues a Poinding of the Ground against Nicolson of Tillicutrie who alleadged no Process because the Earl of Mar his Cedent had no right to thir Feu-duties which were due in his Fathers Lifetime whose Liferent was reserved â—whereupon compearance was made for Scotscraig's Heir who was Donator to the old Earl of Mar's Escheat and Liferent and concurred The Defender answered that the concourse could not be effectual because their bygone Feu-duties being moveable belonged to Scotscraigs Executor and not to his Heir and though the Concurrer was both Heir and Executor yet thir bygones belonging to Scotscraig as Donator being for years wherein Scotscraig lived they are moveable and ought to have been contained in the Inventar of his Testament as they are not It was answered that a Liferent-Escheat having tractum futuri temporis belongs not to the Executor even as to the bygones before the Donators Death unless they had been liquide and established in his Life but the Gift and all following thereon belongs to his Heir The Lords found that the bygones of the Liferent preceeding the Donators Death did belong to his Executor albeit in his Life he had obtained no sentence therefore Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others Ianuary 30. 1671. THe Earl of Queensberry being Superiour to certain Vassals of the Barony of Kelhead who did Dispone the Feu Duties and whole Casualities of the Superiority to Kelhead his Brother to the effect that Kelhead might be his immediat Vassal and that the Feuars might hold of Kelhead whereupon Kelhead was Infeft holding of Queensberry and thereupon pursues a Declarator of Non-entry both generally and specially in the said Summons It was alleadged for the Defenders absolvitor because they were not the Pursuers Vassals for albeit he was Infeft holding of Queensberry to the effect he might become their Superiour yet that Infeftment was null because no Superiour could interpose any Person betwixt him and his immediate Vassals Likeas the Non-entry could only infer the Feu Duty till Decreet or Declarator were pronunced which used to be per se but here
r. he did sell p. 493. l 8. peculium r. periculum p. 497. l. 47 yet whether r. yet where the p. 498. l. 30. 29. ad r. 30. act p. 518. l. 42â— so Richard r. to Richard p. 533. l. 28. loadned r. abandoned p. 546 uses to be preferred Adde the Strangers Infeftment p 567. l 30. and jus r. as jus p. 569. l. 22. Heretable r. Moveable p. 570. l. 4. the Husband therein r. the Husbands interest therein p. 590. l. 32. Ardoch r. him p. 593. l. 38. granted to r. granted by p. 610. l 7. no Testament r. a Testament ibid. did exhauâ—t r. did not exhaust p. 627. l. 26 nothing r. any thing p. 659. l. 30. by invalidat r. to invalidate p. 657. l. 36. are not comprehended r are comprehended p. 665. l. 27. exclude r. excluded p. 666. l. 41. and in r. and not p. 679. l. 21 they could be r. they could not be p. 725. l. 2. another r. a Mother last Index p. 2. l. 49. fragrant r. fragrant A LIST Of the Heads of the following Index or Alphabetical Compend ACT of Indemnâ—ty Act of Parliament Act Salvo Jure Adjudger Adjudication Admâ—ral Advocat Adulterâ—e Alibi Aliment Ann Annexation Annuitiâ— Annus deliberandi Annuelrent Appryzing Arbâ—ter Arrestment Assignatâ—oâ— Attester BAillie Baâ—rn Band Barron Base Infeftment Bastardie Behaving as Heir Bills of Exchange Blank Bloodwiâ—e Bona fides Burgh Burgh Royal. CAptâ—on Casus â—ortuitus Cause onerous Cauâ—â—oner Cedent Certification Charge Chyrogâ—aphum c. Circumvention Citation Clause Clause of Conquest Clause Irritant Clâ—â—se of Substitution Clause de non alienando Coal Cognâ—tion Colledge Command Commissar Commssion Commodatum Common Pasturage Commâ—ntâ—e Compensation Competent and ommitted Compt Compt Book Conclusion of the Cause Confession Confirmation Conâ—usion Conjunctâ—ee Conqueâ—â— Conâ—ent Consignatâ—oâ— Continuation Contract Conâ—rary Alleadgances Contravention Creditor Cropt Cruves Curators Custodie DAmnage Date Death Deathbed Debitor noâ— presumitur donarâ— Debitum fundi Declarator Declarator of Escâ—eaâ— Declarator of Non-entrâ—e Declarator of Nullity Declarator of Property Deâ—reet Decreet Arbitral Decreets of â—nferior Courts Deâ—reets of Session Decreets of Parlâ—ament Delivery Depositation Designaâ—ion Devastation Dilâ—gence Discharge Disposition Division Donatâ—on Donatâ—on betwixt Man and Wife Donator Double poynding In Dubiis c EJection Erection Escheat Exâ—cutors Executor Creditor Execution Exception Exhibition Exhibition ad deliberanduâ— Extract FAther Feu Feu-dutâ—e Forfaulture Fraud Fraught Fruâ—ts Gâ—neral Letâ—eâ—â— Gâ—ft HEirs Heir Male Heir substâ—tute Heâ—r apparent Heâ—rs â—n Tacks Heirship moveable Herâ—table Holden as confest Holograph Homologation Horning Husband Hypothecaâ—ion IGnorantia juâ—is c. Improbation Incident Pro â—ndiviso Infeftment Inhibition Interdiction Interruption Intimation Intromâ—ssion Jus Mariti Jus superveniens c. Jus tertii K The Kâ—ngs Palace Knowledge LAw Legacy Licence to pursue Litiscontestation Locus penitentiae Lords Lucrative Successor Life Lyferenter Lyferent Eâ—cheaâ— Lyon Herauld MAgistrats Mandaâ— Mails and Duties Maintinance Marriage Melâ—oration Merchant Metus Causa Miln Minister Minor non tenetur placitare c. Mâ—nor Minorâ—tie and Leâ—â—on Minute Missive Letter Mother Moveable NEarest of Kin Non-entrie Noviter veniens ad notitiam OAth Oath of Calumnâ—e Oath â—x officio Oath in 〈◊〉 Oath qualified Obligation Offer Office Overseer PArt and pertinent Parties having Interest Paricide Passing from c. Payment Pension Perrâ—l Personal Possession Possessor bonae fidâ—â— Possessorie Judgement Poynding Precept Premunition Prescription Presumption Priviledge Probation Process Promise Protutor Prize Ships Pupil RAtâ—habition Recognâ—tion Redemptâ—on Reduction Regalâ—tâ—e Relief Relâ—ct Removâ—ng Renunciation Reparation Repâ—obatâ—re Requâ—sition Retour Reversion Right Real SAlmond-fishing Satâ—sâ—action Seasine Service Servitude Simulation Singular Successor Slander Special Declarator Spuiâ—zie Stipend Stollen goods Submission Substitution Successor Lucrative Summonds Superior Superiority Suspensions TAcit Relocatâ—on Tack Taxation Teinds Tenor Terce Term of payment Testament Thirâ—age Tocher Trads-men Tranâ—action Transferrence Trust Tutor Tutor nominat Tutor dative ULtimus Haeres Use of Payment Userie VIcarage Violent profites Vâ—tâ—ation Vâ—tious Intromâ—ssion WArd Wakâ—â—ng Warnâ—ng Warrandâ—ce Wiâ—e Wâ—tnesses Wâ—tnes ex officio Wâ—tnesses insert Wodsetter Wodset Writ INDEX OR An Alphabetical Compend of the first Part of the Decisions of the Lords of Session beginning in June 1661. and ending in July 1671. ACT OF INDEMNITY found to liberate a Souldier â—cting with a party of Souldiers in Arms under any Authority lawful or pretended and that his Warrand or Command was thence presumed unless it were proven by his Oath that he had no Warrand and converted the Goods to his own private use Iune 25. 1664. Ferquharson contra Gardner The same found February 15. 1666. Lyon of Murâ—ask contra Gordouns and others But here the application was â—ound probable by Witnesses Act of Indemnity â—ound to secure a Person intrometting by order of the Comittee of Estates for the time in so far as he compted to them without necessity to show his Commission or the Warrand of the Auditors that compted with him but not found sufficient to free him from what he had omitted though the said Accompt bear That he had made Faith that he had omitted nothing Which was only accounted an Oath of Credulity like that of Executors February 13. 1667. Lord Iustice Clerk contra Laird of Lambertoun Act of Indemnity â—ound to make Intromettors with publick Money lyable only for their Intromissions and not for omission though by their Commission they were bound to do Diligence February 23. 1667. inter â—osdem Act of Indemnity found not to make Collectors lyable for what they intrometted with and compted not for not being applyed to their own use but carried away by Souldiers for the use of the Army without necessity to instruct the Souldiers or Collectors Warrand which was presumed Iâ—ly 28. 1668. inter â—osdem ACT OF PARLIAMENT Relating a former Act and not conform thereto â—ound not thereby to alter the former Act but to be Regulat thereby Ianuary 20. 1665. The Heretors upon Don Water contra the Town of Abâ—rdene An Act of Parliament anent leaving the mid-stream free in Crâ—ives found to be taken away by Deâ—uetude past memory Iuly 29 1665. Inter eosdem The like of the Act 1555. cap. 29. Iuly 5. 1666. The Earl of Hume contra his Creditors Act of Parliament in favours of private parties not Printed assigning them to some bygone Maintainance found not effectual against singular Successors though not excepted in the Act they not being called thereto Iune 25. 1668. Inglis contra Laird of â—alfour Act of Parliament betwixt Debitor and Creditor found not to extend to Bonds for Rents of Lands though exceeding 1000. pounds but that personal Execution might be thereon December 6. 1661. Dalmahoy contra Hamâ—â—toun of â—innie The said Act found to Restrict a Wodset though the Usurpers Act and all such Acts made or to be made were Resâ—inded Ianuary 29. 1661. Laird of Lamingtoun contra Sir Iohn Châ—isty The Security required by the said Act for Principal and Annualrent accumulat found either to be by Cautioners
or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to exclude