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
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
that an Annualrent hath not the benefit of a possessory Judgement against a prior Annualrent The Laird of Glencorsse younger contra his Brethren and Sisters Ianuary 10. 1668. THe Laird of Glencorsse having Married his eldest Son and having Disponed to him his whole Estate with Warrandice after the Disposition he did Deliver certain Bonds of Provision in favours of his other Children unto these Children whereupon they Appryze the Lands Disponed to his Son in this Contract there was a Liferent reserved to the Father and nine thousand Merks of Tocher payed to the Father The Son pursues a Reduction of the Bairns Infeftment and Bonds in so far as might be prejudicial to the Disposition granted to him upon this Reason that the Bonds were no delivered Evidents before his Disposition It was answered that they were valide though not Delivered because the Fathers Custody was the Childrens Custody especially they being in his Family both at the time of the Subscribing of the Bonds and of the making of this Disposition and it was â—ever contraverted but that Bonds granted by a Father to his Children though never Delivered during his Life but found amongst his Writs after his Death were valide both to affect his Heirs and Executors The Pursuer answered that his Reason of Reduction stands yet relevant notwithstanding the answer because albeit it be true that Bonds Dispositions and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life or if they have remained uncancelled in their Hands till their Death yet till Delivery or Death they are still pendent Ambulatory Rights and may always be recalled at the pleasure of the Granter and any Deed done by him expresly recalling them or clearly inferring his mind to recall them doth annul them before Delivery ita est the Pursuers Disposition bearing expresse Warrandice against all Deeds done or to be done by the Father granter of these Bonds doth evidently declare his mind that his purpose was not that these Bonds should affect these Lands otherwise he would either reserve the Bonds or a power to burden the Lands and if this were Sustained no Contract of Marriage Disponing the Fee to a Son could be secure it being easie to grant such Bonds and to keep them up above the Sons Head and therewith to affect the Fee yea it would be sufficient against any Stranger unlesse it were for an Onerous Cause 2kly There is not only a Revocation but these Provisions were no Debt of the Fathers prior to the Sons Disposition or Delivery for albeit the date be prior yet the time of their becoming a Debt is only Death or Delivery and therefore all Debt contracted or Deeds done by the Father before his Death or Delivery of the Bonds are prior as to the Obligation thereof to the Bonds so that the Sons Disposition is truly prior as to its Obligations to these Bonds The Defender answered to the first that albeit such Bonds be Revocable before Delivery yet here there is no expresse Revocation but only presumption inserred from the Fathers giving a posterior Disposition which is no sufficient ground either â—rom the Disposition or the Warrandice for the Fathers mind might have been that he would endeavour out of his Liâ—erent or Moveables to Portion his Children and so would not absolutely Burden the Fee but yet in case he should Die or not be able to do it he would not Revock the Bonds even as to that Right which is much rather to be presumed as being much more rational and probable seing there is not any Provision or power of Provision reserved in the Contract neither is there any competent way alleadged for providing of three Children but if this Sole presumption be sufficient though a Father should Dispone his whole Estate without any Reservation of Children or to be so inconsiderat as not to except his Aliment all prior Provisions for his Life-rent undelivered should cease and become ineffectual contrair to that Natural obligation of Parents to provide their Children against which no presumption can be prevalent As to the other ground Provisions though not Delivered can be in no worse case then Bonds delivered with a Condition that the Father might recall the same which would be valid from their Date if they were never actually recalled and so must Bonds of Provision be at least as to gratuitous Deeds after their Date though before Delivery as if a Father should grant Bonds of Provision to many Children at once and should Deliver some of them before the rest if he had not Means sufficient to pay all the Bonds first Delivered could not be thought to exhaust his whole Means and exclude the other Bonds of Provision but all would come in pari passu according to their Dates except their Diligence alter the Case The Lords notwithstanding of what was alleadged found the Reason of Reduction relevant and that the undelivered Bonds of Provision though prior in Date yet posterior in Delivery could not affect the Fee interveening Here there was much alleadged upon the Onerosity of the Pursuers Disposition which came not to be considered in the Decision Grant contra Grant Ianuary 11. 1668. WIlliam Grant of Markinsh pursues a Tutor Compt against Iohn Grant of Ballandallock his Tutor in which these points being reported to the Lords whether the Tutor were lyable for the value of Services of the Pupils Tennents by Harrowing Plowing and Shearing c. And for which the Tutor received no Money but the Services in kind The Lords found the Tutor not Comptable therefore because he could not force the Tennents to pay any price for the same And as to that point the Tutor being super-expended the Pupil might be Decerned upon the Pupils own Process against the Tutor without a distinct Process at the Tutor instance The Lords found he might Parkman contra Captain Allan Ianuary 14. 1668. CAptain Allan having obtained a Decreet against Parkman a Swede Adjudging his Ship Pryze upon these Grounds that she was Sailed with three persons of her Company being Hollanders and Danes being then the Kings Enemies and because she had carried of the Enemies Goods from Bergen in Norway to Amsterdam from whence having gone to France with Ballast and being Loaden there with Salt she did also carry in to France six Barrels of Tar which was sold in France as appears by an Accompt betwixt the â—kipper and his Factor in France bearing so much to be payed of the Kings and Towns Custom of the Tar which necessarly Imports that it was sold there likewise she carried in Stock-fish being Commeatus and Counterband Goods so that having sold several Lasts of Tar in Holland and these Barrals and Stock-fish in France which are clearly Counterband Goods and being taken in her return from France having in her the product of these Counterband Goods whereupon she was jâ—â—tly declared Prize conform to the Lord Admirals Commission ordaining Ships of Allies to be taken having
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
a real Right nor prevent the Diligence of other Creditors 2dly If they had a good interest to Reduce and thereupon to Apprize no offer could take away that interest but payment The Lords found the Creditors had sufficient Interest upon their Personal Bonds to insist upon the Reduction ex capite lecti but they found that a real Security given to Cowpers Creditors equivalent to an Apprizing and Infeftment was sufficient to exclude their Interest Monteith of Carâ—ubber contra Margaret Boyd December 2. 1669 UMquhil Mr. Robert Boyd of Kips dying Infeft in the Lands of Kips and Gourmyre and in a Miln and having left two Daughters Heirs portioners the younger having Married Monteith of Carrubber being dead her Son and Heir raised a Brief of Division against the eldest Sister whereupon Division was made in this manner viz. The Rent of the Miln being Rated at a 100. pound the Chalder being more than the Rent of the Land the whole Land was set on the one part and the Miln on the other and because the Mansion-House belonged to the eldest Sister the Land was Adjudged to her and the Miln Adjudged to the other and the superplus of the Rent of the Miln allowed in satisfaction of the youngest Sisters Interest in the House Carrubber raises Reduction of this Division upon these Reasons First That the Lands ought to have been divided in two shares and the House likewise having convenient Rooms and Lodgings for both Families in which they have Dwelt these 20. years and not to have Adjudged the Miln only to him stating the Victual being only Meal at a 100. pound the Chalder far above the just value and stating the Miln-Rent equivalent to the Land-Rent which is subject to many more Contingencies and Expenses in upholding the Miln and difficulties in recovering the Rent and in the common estimation is not accounted equivalent to Land Rent so that he is enormly les'd and offered a 1000 merks to Margaret the eldest Daughter to exchange shares albeit the Rent of either share be but about three Chalders of Victual The Defender answered that the Reasons of Reduction were no way Relevant because all Divisions ought to proceed as is most convenient for either Party and where least is left undividedâ— and the Division it self cannot have a precise Rule but is in arbitrio of the Inquest who were knowing Gentlemen of the Neighbourhead and upon Oath so that unless the Lesion were ultra dimidium justi valoris it cannot be recalled seing an Inquest has the irrecoverable determination of Life and Death which is of far greater moment than this and this Division proceeded upon Carrubbers own Process and the Inquest was called by himself And albeit it be true that if the Division could have been made by giving both a share of the Lands and a share of the Milns if there had been more Milns it might have been more equal but here if the Land had been Divided the Miln behoved to have remained for ever Common and so the Division not be compleat Likeas the Miln lies at a distance from the Land and near to Carrubbers own Land and is not a casual Rent arising from free Multures but has the whole Barrony of Torphichen astricted by Infeftment and the Defender is willing to give 2500. merks for each Chalder of the Miln Rent which is the ordinary rate of Land Rent and the reason why there was no Cavel or Lot was because the eldest Sister falling the Mansion House by Law she behoved to have the Land therewith The Lords Sustained the Reasons and Ordained a new Commission for a new Division here the Lords would not consider the Points severally whether the Mansion House ought to have been Adjudged to the eldest Sister and a Recompence to the second Or whether such a House being no Tower nor Fortalice but which would be comprehended as a Pertinent of the Land gave no preference so that Lots ought to have been cast upon the Division Or whether the House could be divided per contignaliones Or whether the Miln though it had been truly Rated could have been put to answer the whole Land Or that the Land behoved to be divided and the Miln remain common but only generally the Lords gave a new Commission for a new Division Weavers of Pearth contra Weavers at the Bridge-end of Pearth December 4. 1669. THE Weavers of Pearth having pursued the Weavers at the Bridge-end upon the 154. Act Par. 1592. prohibiting Trads-men in the Suburbs of Burghs to exercise their Trades whereof mention is made Iuly 21. 1669. The Defenders were then assoilzied Now the Pursuers further alleadge whereas it was then represented that that Act had never taken effect but was in desuetude They now produce a Decreet of the Lords at the instance of the Weavers of Edinburgh against the Weavers of the Suburbs compearing Decerning them to desist and cease from bringing any of their Work within the Liberties of Edinburgh and from coming within the same to receive Work and that upon the same Act of Parliament which cleares that the same is not in desuetude and it is founded upon a most just and necessar Ground viz. That Trads-men within Burgh pay Stent for their Trade which were impossible for them to do if the same Trads-men were permitted in the Suburbs who might work cheaper then they not being lyable to Stent The Lords Explained their former Interlocutor and declared conform to the foresaid Decreet of the Town of Edinburgh viz. That Weavers in Suburbs might serve any in the Landward but might not come within the Liberties of the Burgh for taking up the Work of the Burgesses in prejudice of the Free-men who were Free-men of the Burgh Iohn Iaffray contra Alexander Iaffray and Doctor Iaffray his Son Eodem die JOhn Iaffray late Provost of Aberdeen pursues a Declarator of the Escheat and Liferent of Alexander Iaffray his Brother Compearance is made for Doctor Iaffray Son to the Rebel who produced a prior Gift with general and special Declarator and alleadges no Declarator at the Pursuers instance upon this posterior Gift because the Right is fully Established in his Person by the prior Gift and Declarators The Pursuer answered First That the Doctors Gift is simulat to the Rebels behove and so accresced to the Pursuer which appears from these Evidences First That the Doctor is the Rebels own Son 2dly That it is retenta possessione the Doctor having suffered his Father to possess for many years 3dly It was offered to be proven per membra curiae of the Exchequer that the Gift was purchased by the Rebels Means and Moyen and severally it was offered to be proven by the Doctors and his Fathers Oath conjunctim that he had given a Back-bond declaring the Gift to be to his Fathers behove It was answered for the Doctor to the first that the Grounds of Simulation were no way Relevant for albeit he was the Rebels Son yet he had means of
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
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
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
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
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
Blank-bond had before the Arrestment seen the Blank-bond filled up and so had deponed or could depone that the time of the Arrestment the Debitor saw himself to be Debitor to another person filled up in the Blank than he for whose Debt it was Arrested for in that Case as the first Creditor that got the Blank-bond might have caused his Debitor retire that Bond and give a new one before any Arrestment so the showing of the filling up of the Blank was equivalent especially if the Debt could be proven no otherwayes but by the Deâ—â—tors Oath This Case was not debated nor was the hazard considered that the Debitors Oath might prefer one Partie to another nor was the case alike to a renewed Bond because a renewed Bond would bear a new date and different Witnesses that saw the new Creditors name filled up and would not depend upon the single Testimony of the Debitor Barbara Skeen and Mr. David Thors contra Sir Andrew Ramsay November 14. 1665. BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay to 18 Chalders of Victual or 1800 merks her Husband having acquired the Lands of Grange Muire worth 10 Chalders of Victnal she pursues Sir Andrew Ramsay as Heir to his Brother to make her up the superplus The Defender alleadged absolvitor because he offered him to prove that the said Barbara stood Infeft in the Lands of Grange Muire upon a Bond granted by her Husband which Bond bears In full satisfaction of the Contract of Marriage by Vertue of which Infeftment she having no other Right she had possest five or six years after her Husbands death and thereby had accepted that Right and had Homologat the same It was replyed that the Bond being a Deed of the Husbands a Clause foisted thereinto so far to the detrement of his Wife and the Infeftment not being taken by her but by an Acturney her possession cannot import Homologation thereof because Homologation being a Taâ—ite consent is not inferred but where the Homologator cannot but know the Right Homologat and can do the Deeds of Homologation no otherwayes but by vertue of that Right neither of which holds here because the personal oblidgement in the Contract was a ground for the Wife to have continued her Husbands possession and would have excluded his Heirs if they had quarrelled and not only the Clause must be presumed to be without the Womans knowledge but the Bond it self and the Infeftment especially considering the simplicity of Wives and their confidence in their Husbands who if this were sustained would easily deceive them It was duplyed for the Defender that he offers him to prove that the Pursuer did not continue her husbands possession but did begin Possession her Husband being never in possession before his death and that she set two several Tacks expresly as Liferenter and the third with consent of Mr. David Thors her Husband being an Advocat and so she cannot be presumed to have been ignorant but on the contraire she must bepresumed to have known the Right and could never denominat her self Liferentrix by a personal oblidgement to Infeft her in so much Victual and Money without mentioning any Land in particular and her acceptance though to her detriment may be the more easily presumed because she had two Children surviving her Husband in whose favour the Restriction did accresce and her Husband did secure her in all that he had but now ex post facto the Children being dead she could not return upon Sir Andrew her Husbands Brother contrare to her Homologation The Lords sustained the Defense and Duply for they thought albeit ignorance might be presumed in a Wife de recente intra annum luctus yet she having continued for so many years and doing so many deeds expresly as Liferenter and that the Bond was not clandistinely lying by her Husband but in a third Parties hand who had taken the Infeftment they thought in that case ignorance was not to be presumed but knowledge Wat contra Russel November 16. 1665. JEan Wat being provided by her Contract of Marriage to certain Lands and Infeft therein the Contract contains this Clause that she shall Aliment the Bairns of the Marriage after the Fathers death and in case she marrie again she shall restrict her self to six hundred merks and the superplus shal remain to the Bairns for their Aliment hereupon she pursues Robert Russel and the other Tennents for the Mails and Duties of the hail Liferent Lands who alleadged 1. That she was restricted to six hundred merks and could crave no more especially now being married to a second Husband compearance was also made for the only Child of the Marriage who claimed the benefit of the superplus by vertue of the Clause in the Contract It was alleadged further for the Defenders that they were Creditors to the Husband before the Contract of Marriage and in their Tacks had a Clause bearing That they should retain their Tack duties while they were payed and upon their Bonds they had also Apprized from the Child as lawfully charged to enter Heir all Right he had to the Lands So that if the superplus belong to the Child proprio jure it now belonged to the Defenders as appryzers They had also raised Reduction of the Clause of the Contract in favours of the Children as being granted by a Father in favours of his own Children after Contracting of their Debt and so was fraudulent and Reduceable by the Act of Parliament 1621. Against Bankerupts It was answered for the Child that as for the Appryzing and Decreet against him as charged to enter Heir he had Suspended and raised Reduction and craved to be reponed and produced a Renounciation offering to renounce all Right he could succeed to as Heir to his Father but prejudice of this Aliment which belonged to him proprio jure as a Restriction granted to him by his Mother and as to the Reason of Reduction upon the Act of Parliament There was here neither Fault nor Fraud their being no Law to hinder a Husband to give his Wife what Joynture he pleased which was never compted in defraud of prior Creditors nor is their any Restriction or proportion thereof but as the Parties agree which is always sustained in favorem dotium matrimonij and the Wife might take what Liferent the Husband was pleased to give her there was nothing to make her to restrict her self in favours of her Children for an aliment with restriction is no Deed of the Father but of the Mother It was answered for the Defenders that the reason of Reduction stood relevant seing in this case there was manifest Fraud in so far as this Liferent was exorbitant and unproportionable to the Fathers Estate whose hail Lands being only worth 1000. merks and having nothing but the Tocher which was 6000. merks he Infefts his Wife in the hail and yet restricted her to 600. merks and provided the rest to his Children and
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
Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ— whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ— and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâ—phan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a â—aked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for
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
no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
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
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
The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this Pursuer
was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of the
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
Lands and Sums to the Heirs of the marriage which failing the mans Heirs nor yet to make any portion thereof to return to the Wife in that case as not being ordinary but only to rectifie the same as to the Wifes loynture November 22. 1664. Mâ—gil contra Ruthven of Gairn Minority and Lesion was found only competent by Reduction and not by Exâ—eption or Suspensâ—on Iune 28. 1665. Kyâ—e contra seaâ—oun Minority and Lesion was not â—lided because the money was delivered to pretended Curators who were lyable to the minor without diâ—cussing the Curators first seing they were not in this Process and the minor hath his option to Reduce against the Creditor or pursue his Curators and Intrometters Iuly 2. 1667. Lord Blantire contra Walkinshaw Minority and Lesâ—on being insisted in by reduction and majority being alleadged in defense neither party was preferred in probation but Witnesses allowed hinc inde February 20 1668. â—arquâ—ar of Towliâ— contra Gordouâ— Minority and Lesion was sustained to Reduce a Disposition by a Wife to her Husbands Brother though it had been to her Husbands behove in contemplation of the marriage seing there was no remuneratory provision on the Husbands part and that the legal Terce was not enough but that the Husband ought to have acquiesced in his jus mariti as well as the Wife in â—er Terce or both had mutual provisions here the Wife was carried away and married without her Freinds consent Iuly 14. 1669. Earl of Marischal contra Keith of Whitehaugh A MINVTE disponing Lands with part and pertinent was found to be extended â—o as to express common pasturage in a Muire possessed therewith the time of the Bargain February 14. 1668. Borthwick contra Lord Borthwick A Minute was exâ—ended by the Witnesses insert as to the manner of payment which was not so exprest therein Ianuary 15. 1666. Châ—ap contra Philip. A MISSIVE LETTER by a Merchant to a Factor to send home Wine on such another Factors credite with whom the Writer not being acquaint but upon the Factors account was found to oblige the Writer and not that third party unless he had accepted neither then did it liberate the Writer but the third party was expromissor in this the Lords would not take Examination of Merchants what such Letters did import February 7. 1665. Pallat Factor at Burdeux contra Fairholm A Missive Letter was found to instruct an accompt of 100. pound sterling received and Furniture sent albeit it was not holograph nor amongst Merchants but betwixt noble persons being for â—urniture sent from London to the Writer of the Letter by the other noble person being then at London to whom it was written the said receiver of the Letter making Faith that this was the true Letter that he received from the other February 28. 1671. Earl of Northesk â—ntra Viscount of Stormont Missive vide Clause Iuly 15. 1662. Wauchop contra Laird of Niddrie c. A MOTHER was found obliged by the Law to aliment her Children according to her means they having no means of their own or any person representing their Father able to aliment them in their Family but that the Mother was only â—bliged to aliment them in her Family dâ—d not to pay modification for their Education out of her Family albeit they were â—oble persons and the Mother had miscarried February 23. 1666. Children of the Earl of Buchan contra Countess of Buchan A Mother taking a Bond to her self in Liferent and to her Children in Fee was â—ound not to have poweâ— to alter or assign that Bond to another as being presumed to be made by her own means but the same was presumed to be the Childrens meansâ— by their Father though their Mother was not Tuâ—rix or Curatrix to them seing the Bond did not express it to be the Mothers own means noâ— reserved a power to the Moâ—â—er to Dispone February 18. 1671. Dundas contra the Lairds of Ardrosâ— and â—ouch MOVEAâ—â—ES being craved to be restored as being the Pursuers the Libel was not found Relevant unless he condescended quomodo desâ—t â—osildire and instruct the same and he having condescended that it was by Loan it was found probable by Witnesses 〈◊〉 21. 1665. Scot contra Fletcher In Moveables possession presumes a Title without necessâ—ty to instruct the possessors authors Rightâ— without distinction of ordinary moveables or lewels unless the presumpâ—ion be elided by â—â—onger probation that such Iewels could not have belonged to him that impignoâ—ate the same who neither had them as a Merchand nor leweler neither did nor could make use of them for his own wearing Decâ—mber 12. 1665. Ramsay contra Wilson Here the first Author Impignorat them by Writ and immediatly â—ent abroad NEAREST OF KIN surviving the Deâ—unct Transmit their share of the deads part to their â—xecutors and it doth not accresâ—oâ—â—â— the rest of the nearest of kin or to their Executors February 1â— 166â— â—ell contra Wilkie IN NONEâ—TRY the full Rent is due from the citation in the general Deâ—â—arator and not from the time of the Sentence only 〈◊〉 and accordingly the special Declarator was sustained Iuly 25. 1666. Harper contra his Vassals Idem Iune 12. 1673. Faw contra Lord Balmerinâ— and Laird Pourie NOVITER Vâ—NIENS AD NOT ITIAM was sustained to reduce the Circumduction of a Term upon the Suspenders making Faith that the Writs now produced to prove what was then â—o have been proven were found out by her since the Term was Circumduced Iune 29. 1665. Norvil contra Suntar OATH OF A WIFE never to come in the contrary of her Bond granted 〈…〉 was found not to hinder her to alleadge that the Bond was null ipso jure February 18. 1662. contra 〈◊〉 Oath of parties being taken and they deponing upon the Tenor of a Writ and assoilzied thereupon were decerned thereafter upon production of the same Writ as not being contrary to the Oath but being only in so far as the Deponent Remembred the Tenor of the Writ November 23. 1665. Campbel contra Doctor 〈◊〉 The Oaâ—h of an author was found competent against a singular Successor in an Appryzing for proving the â—ame satified by intromission seing before this Defenders Right the matter was Litigious and an Act Extracted referring the intromission to that Authors Oath Iuly 14. 1666. Sharp contra Glen OATH OF CALVMNIE was found Competent as to one point of a Libel where the rest was not to be proven by Oath but in respect there could be no evident difference as to that point betwixt the Oath of Calumny and Verity and that the point was no ways probable but by the Oath of Verity the Oath of Calumny thereanent was refused February 20. 1667. 〈◊〉 contra 〈◊〉 OATH EX OFFICIO â—nent having of Writs was found to be given if at any time the Deponent had them and how he put them away that it might appear if fraudulently but not to depone if he knew who had them as not being proper November 1â— 1662.