as to not delivery It appeared by his Oath that he was trusted to the behoof of the Pursuer and was in effect a Depositar so that he could not cancel the said Bond without consent of the Pursuer To which It was Answered That the Decreet was Extracted as said is and that immediatly upon the pronounceing of the same he had applyed to the Lords to the effect foresaid And it cannot be said that he had any Trust from the Pursuer but only from her Father And tho he could be thought to be a Depositar the manner and quality and terms of the Depositation could not be proven otherwayes but Scripto or Juramento The Lords notwithstanding Thought they were concerned to adhere to the Decreet being in foro least their Decreets should be obnoxious to that prejudice that even when they are in foro they may be questioned and altered Some of the Lords were of the opinion that the great consideration the Lords should have is to do Justice and that the party having omitted nothing upon his part neither before nor after pronounceing of the same and upon the matter the reason of Suspension as to the point of Justice and Law being unanswerably Relevant It was hard that a Party should be grieved upon a pretence of form there being a singularity in this case upon which the Honour of the Lords may be salved viz. That the said Decreet was Extracted with too much precipitation D. 226. Joynt Petition of the Advocates 26. January 1675. A Joint Petition was presented by the Advocates that had withdrawen whereby they did not expresly desire that they should be readmitted but did hold forth that they were free of and hated the very thought of Sedition and that the Lords who did best know the Reasons of their withdrawing would vindicate them to His Majesty and that they were willing to serve with that freedom which their predecessors had formerly and which they conceived was no more than was necessary for these of their station in order to the interest of the People that they acknowledge and were willing to submit to the just Power of the Lords as their predecessors had enjoyed the same and desired that the Petition should be transmitted to His Majesty as satisfactory Some of the Lords thought that the Petition was altogether dissatisfactory and should be thrown over the Barr being as to the manner in a joint and Factious way And as to the matter no ways satisfactory insinuating a qualification of the Lords Power and their Submission and that the Lords pretended to a Power which their Predecessors had not and that was not just Others of the Lords were of the opinion That whatever mistakes there might be as to the manner It was hard upon that account to reject it and that if the time was not so pressing that which was appointed for Addresses being to Elapse the very next day it might have been helped as to the manner by giving Intimation to the Advocates that it would not satisfy But there being no time for that and the certification being so high and heavy viz. utter and perpetual incapacity it might be justly said as it is Reported a Judge in England had said in the case of a person accused of Theft whom he enclined to favour by reason of the meanness of the value of the thing that was stollen being a Watch of Brass only and the matter of the Watch being beneath that value which the Law of England requires for punishing Theives Capitally And it being Alledged that the Fashion with the Matter did exceed the value foresaid It is said that he Answered That he would take no Mans Life for the Fashion and it were hard for the Fashion and modus and the way of Address to take from so many persons their Livelyhood and from the Countrey their Service that was so necessary to them And that the Advocates fault being a Joint-withdrawing they might conceive that the expiation of the same should be by a joint Address And yet the Petition was not joint as to all the Advocates concerned many having given in and being to give in several Petitions And as to the matter it was Represented that though the Petition is general yet the generals therein contained do imply the particulars that would be satisfactory seing the Lords did not pretend to any power but that which was just and no violation was intended of their Liberties neither was any innovation introduced or obtruded upon them or their carriage in their station Upon all which It was thought that the Petition should be transmitted simply to the effect it might import Interruption of the Prescription and Certification any Acts of Interruption even quales quales being sufficient And the more short that the Prescription be and the higher the Certification and prejudice of Prescription as in this case the Interruption being the more favourable The Lords notwithstanding Found that the Petition not being satisfactory could not be transmitted to any effect And yet did declare that albeit the Proclamation was conceived in these terms viz. That if the Advocates should not give satisfaction betwixt and the 28. day if they should apply upon the 28. day their Application should be thought to be within the time contained in the Act And that in stile of Law these words betwixt and a certain Term does not exclude the day of the Term. They declared also That the Petition being dissatisfactory upon that account amongst others viz. That they did not offer satisfaction nor desire to be readmitted That Petitions being given in severally and bearing that they desired to Re-enter and were willing to give satisfaction conform to the Kings Letter and Proclamation should be received and transmitted as satisfactory D. 227. Eod. die UPon a Bill the Lords Found That Parties having a joint and equal Interest in Lands and Tenements both as to the Right it self being disponed to them jointly and as to the respective Proportion and Parts of the said Tenements the principal Writes should be keeped by such as offered Caution to the other Portioners and that Transumpts should be given to the other Persons concerned upon the Common Charges of them all D. 228. 27. January 1675. IN the case abovementioned 5. January instant concerning Con-cautioners obliged conjunctly and severally for the Principal without a clause of mutual Relief The Lords Found That one of the Cautioners having payed and taken Assignation the others had a good Defence against him for his own part notwithstanding of the Reasons there abovementioned and that it was urged that the Co-cautioner could not be forced to relieve the Defender if he had payed the whole seing he had neither actio mandati there being none given by either of the Cautioners to others nor was obliged to relieve the other Cautioners by an express Clause which is ever insert when mutual relief is intended And that this is clear Law it appears from the Title of the Civil Law de
Renounced Heir and Executor GIfts of Ward Marriage Non-entry Do these belong to the Heir or Executor Answer They are in rem and some has tractum and therefore belong to the Heir A Person being obliged by a Bond to Dispone Lands for a certain price and the Creditor having charged upon the said Bond and being content to pay the price and in the interim the Debitor deceasing Quaeritur If the Creditor obtain a Decreet for implement against the Heir whether the party bound to Dispone his Heirs or Executors will have Right to the Price Answer It is thought that the Heir will have Right seing there is no Sum due to the party bound but if he Dispone which is only in obligatione the said Sum becometh due upon his Disposition and is not due to any but to a Person who is to Dispone and the Heir only can Dispone If by Contract one of the Parties has Disponed and is obliged to Infeft in Lands and the other is obliged to pay a Sum of Money as the Price Quaeritur If the Seller decease before the Disposition be fulfilled whether the Sellers Heirs or Executors will have right to the Price Ratio Dubitandi The Heir only can fulfil and therefore ought to have the Price and on the other part the Heir is Lyable to fulfil by the Disponers Obligement But the Disponer having taken the Obligement to pay the price in favours of himself his Heirs and Executors the Sum by the Act of Parliament should pertain to the Executors And it appears that the Disponer in place of his Lands intended to have a personal and Moveable Estate What is the Reason of Difference betwixt the last and former case Answer In the last there is a Moveable Obligement for payment of Money And in the other there is no Obligement upon the Creditor but upon the Debitor to Dispone But so that if the Disposition be made a Sum is to be payed which cannot be payed but to the Disponer's Heir after his decease who only can Dispone the Debitors Executors can have no right to the same and it was in the Creditors option either to charge for implement or not so that the Money was not in Obligatione but in Conditione or modo If implement should be craved When an Order of Redemption is used and the Money consigned and thereafter the person against whom the order is used deceases Quaeritur Whether the same will belong to his Heirs or Executors Answer It is thought it should belong to the Heir for the reason foresaid in the last Querie Specially seing an order of Redemption may he used against an Appearand Heir And if that Appearand Heir should after Consignation decease the Money could not belong to any representing him who had no Right and therefore it can belong to no other but to the Heir who should be thereafter Heir and Infeft and should Renounce And therefore it is thought that the Money being the Redeemers Money and upon his hazard untill Declarator it is never Money of the person against whom the order is used until Declarator and then being his in specie is moveable and belongs to his Executors If a Wadset be granted to a Man and his Wife and the longest liver of them two and the Heirs of the Marriage c. And an order of Redemption be used and declared against the Husband and thereafter he decease Whether in that case the Money consigned will be heretable and ought to be given up to be employed for the Wife in Liferent and the Heirs in Fee Answer Affirmative A Bond being ab initio heretable by Obligement to Infeft and Infeftment thereupon And thereafter there being a Bond of Corroboration granted for the same Sum but not heretable bearing to the Creditor only his Heirs and Executors Quaeritur Whether the Sum be Heretable or Moveable Ratio Dubitandi The same is due both by an Heretable and Moveable Bond and the Moveable Bond being Posterior seems to be a Novation of the former posteriora derogant prioribus Et contra the said Sum is due still upon Infeftment and the subsequent Bond is only in accessorio So that jus principale primordiale is more to be considered as to the question concerning the nature and quality of the Right Heirs Male A Father his Eldest Son being Dumb of purpose to exclude him as being unable to manage Doth by a Bond of TailÈie settle his Estate upon another Son and the Heirs Male of his Body Whilk FailÈieing to his other Heirs Male with a Provision That his said other Son and his foresaids should be obliged to entertain the Elder Brother And if the said dumb person should at any time have the Faculty of his speaking he should succeed and the said Bond should be void Quaeritur If the Brother who has got the Estate decease before the Elder without Heirs of his Body If the Elder Brother would succeed to him as Heir Male Answer It is so evident that it was intended that the Elder Brother should not succeed except in the case foresaid if he should have the said Faculty of his speaking And the said TailÈie being made of purpose to seclude him It is thought that he cannot succeed by vertue thereof And his Heirs Males is to be understood his other Heirs Male by the Dumb Person who is excluded Obligements in Contracts in favours of the Heirs of the Marriage A Person being obliged by his Contract of Marriage with a second Wife to resign certain Lands for an Infeftment to himself and the Heirs Male of the Marriage and to employ also 60000 lib. for the Heirs of the Marriage And his Eldest and only Son of the first Marriage being bound by a Bond granted thereafter for implement of the said Contract of Marriage in the same manner as if he had been obliged by the Contract And the Father having accordingly resigned and taken Infeftment and the Son of the second Marriage being Infeft as Heir of Provision in the Lands provided as said is in favours of the Heirs of the said Marriage Quaeritur If the Son of the first Marriage being after the said Contract Infeft in the Fee of the Fathers other Estate will be Lyable to relieve the Heir of the second Marriage of the Debts contracted after the said Fee as Successor Titulo Lucrativo or being bound for his Father as said is Upon that pretence that his Father ought to perform the Obligements of the said Contract cum effectu and to free the Heir of the second Marriage of his Debts It is thought that the Contract being once fulfilled by taking the Infeftment foresaid and by employing of the said Sum both the Father and his Cautioner the Eldest Son were immediatly Liberate the said Obligement being satisfied The import of the same being that the Son of the second Marriage should succeed as Heir in the saids Lands but not that he should be free of his Debt Or that being free the Father
it will militate against a singular Successor Answer Such Jura Haereditaria which are in rem non Transferuntur nudis pactis sed traditione and by possession which is instar traditionis But if the Servitude be Discontinua as v. g. the leading of Sea-ware which is not done but at a certain time of the Year Quaeritur what shall be done to perfect the Constitution It is thought it may be published by making Intimation thereof to the Tennents and at the Paroch Church and upon the ground and the Granter if need be may be Inhibited Si alicui Jus hauriendi adeundi conoessum est utrumque habet Si tantum hauriendi inest aditus Si tantum adeundi ad fontem inest haustus aliquo enim concesso omne illud sine quo hoc Jure uti nequimus concessum intelligitur Jus Fluviat p. 89. initio Aut vicini aquam hauserunt Jure familiaritatis aut Jure acquisito hoc casu cogi nequeunt ut in fonte mutationem admittant illo possunt Idem p. 90. n. 40. Lords of Session IF the Lords of Session have power to Judge Appellatione remota seing they have the same power which the Lords of Session had formerly It is thought that they have the same power Extensive as to the subject of their Jurisdiction but not Intensive as to the quality foresaid if it be not exprest being ex reservatis quae non transeunt nisi exprimantur Seing Adaequatio by the clause with the same power is to be understood as to the ordinar power belonging to Judicatories and Incorporations qua talia and not as to any Extraordinary Power and Priviledge As if a Burgh should be Erected with the same priviledges belonging to any Burgh within the Kingdom they will not have Right to be Sheriffs within themselves by reason other Burghs have that Right non qua Burga but by a special priviledge And some Lords of Regality do pretend to the Escheats of the Persons within their Regality upon Horning and yet a Right of Regality by the general clause will not cary the same If the Lords of Session be to be considered as Judges only or Magistrates Praetores habentes Imperium in some cases Sheriffs IF Precepts of Sheriffs may be put in Execution by their Officers after their Death Ships IF a Ship being abroad Traditio Instrumentorum to a Buyer viz. of the vendition be sufficient If a Ship be poindable quomodo Solarium SOlarium est vectigal quod a superficiario penditur pro Jure superficiei in solo Jus Fluviat p. 70. n. 15. Sponsalia IF after a solemn Contract of Marriage one of the Parties Marry otherways will that Marriage be lawful even though after Banns upon the said Contract of Marriage Answer Contracts of Marriage and Sponsalia inducunt Jus ad rem as in other personal Contracts and Dispositions anent Lands but not in re sine Traditione which in Marriage is only when sequitur Benedictio in facie Ecclesiae or Concubitus If Sponsalia be consummate and purified per Copulam and a pursuit being intented for Solemnizing the Marriage and Declaring the Issue lawful the Defender die in the interim may the pursuit be transferred in favours of the Wife and Children ad hunc effectum at least that she may have Jus Relictae and they be Heirs and Executors to their Father Eadem est quaestio as to promise and copula Rejecta distinctione Canonistarum in Sponsalia de praesenti de futuro prout illi ista accipiunt quaelibet Sponsalia quibuscunque verbis contracta nihil aliud sunt quam Conventiones de Matrimonio in futurum contrahendo Christenius de Jure Matrimonii Dissert 1. § 3. A modo tamen contrahendi usu hodierno dividi possunt Sponsalia in pura sine adjectione alicujus conditionis Conditionalia quae honesta conditione apposita contrahuntur ut ducam si Pater consenserit illa de praesenti ista de futuro haud male appellantur Ibidem Qui Sponsalia contrahunt nuptias celebrare compelluntur legitimis coercitionibus Contractus Sponsalitius trinundino promulgatur in Ecclesia aut pro Curia Ibidem sent 6. Concubitu purificantur Sponsalia sub conditione statim fit conjugium quia censentur sponsi a conditione recedere nec obest protestatio se non recedere utpote contraria facto Christen de Sponsal quaest 9. Statuta STatuta Ratione Bonorum sui Territorii obligant etiam non subjectos ipsas enim res afficiunt sive a Cive possideantur sive ab Advena Thes Bes lit S. 110. ante finem addit p. 902. Steelbow and Heirship WHether a Roum being set in Tack for certain Years with Steelbow-Goods as Oxen c. will the Steelbow Goods belong to the Heir who has Right to the Tack Or to the Executor Ratio Dubitandi Both the Lands and the Goods are set in the Tack as Fundus Instructus and the Duty is payable in contemplation of both so whoever has Right to the Tack has Right to both the Tack being Jus individuum 2. The Goods are like nativi ascriptitii addicti glebae 3. What is to ly fixed for diverse years cannot be reckoned inter mobilia 4. It were hard to think that a Relict and Bairns should have their Legitim out of Goods that are not in the possession of the Defunct nor would be for diverse years And it would seem That eadem est Ratio as to the setter of the Tack and his Heirs and Executors Pecora dantur in socidam cum animalium casus in Pastorem transfertur qua conventione pecora ferrea effici appellari solent quod fit in multis provinciis Germaniae ubi cum fundo certus numerus ovium vaccarum in feudum dari solet ita ut Vasallus feudo sinito eundem numerum supplere restituere teneatur Besold Thes in verbo Eisern Biehe lit E. p. 224. Strangers See Process against Strangers lit P. ALL Nations are Municipia and the World a great Civitas They have that Relation and necessitude that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sunt and owe Justice to all persons of whatsoever Nation according to the Law of the place where they Contract with respect to that place sibi enim legem dixerunt If Justice be refused datur remedium pig norationis seu Repressaliarum Goods or Debts belonging to Strangers IF Mobilia or Nomina belonging to Strangers v. g. in England should be confirmed here Or if it be sufficient they should be confirmed in England Ratio Dubitandi sequuntur personam On the other part they are a Scotish Subject or Interest Subjects living Abroad A Native Living Abroad and being Popish and going to the Mass where he liveth Quaeritur Whether he Forfaulteth his Estate in Scotland Item If he Intercommune there with persons Forefaulted in Scotland whether he be Lyable as having contraveened the Law of Scotland so that if he have any Estate in
same simpliciter and tho such a Qualification may be allowed to Strangers and singular Successors who may be in bona fide to take Assignations to Writs Yet Wives and conjunct Persons and Relations are in a different condition seing they are presumed not to be ignorant of the Deeds and Transactions of their Husbands and Relations Newbyth Reporter Monro Clerk D. 266. Thomson and Halyburton contra Ogilvie and Watson eod die DAvid Thomson having by his Testament nominate his Wife Executrix and Tutrix and having left a Legacy to his Son of 5000. lib. and having ordained his Relict to employ the same upon Annualrent in sua far as he ordained him to be educate upon the Annualrent of the same In a Pursute for the said Legacy and the Annualrent of the same It was Alledged That the Executrix could not be lyable for Annualrent And It being Replyed That she was also Tutrix and Tutors are lyable after the first Term that they embrace the Office for Annualrent of the Pupils Means and that having confirmed the Testament by the Nomination foresaid of her to be Tutrix she hath accepted the Office of Tutorie And the Point at Interloquitor being whether by confirming of the Testament she had accepted of the Office of Tutorie Some of the Lords viz. _____ Were of the Opinion That by Confirming of the Testament she did not accept of the Office But it was Found by the Lords That having confirmed without Protestation that she did not accept of the Office eo ipso she did accept of the same And tho she had emitted such a Protestation it could not be allowed seing she was not only named Executrix but had a Legacy left her and she could not accept the Office of Executry and Legacy foresaid and repudiate the Office of Tutory of her own Child The Lords in the Case foresaid Thought That if the Relict were able to make appear That having used all possible diligence she had not recovered Payment of the Defuncts Means she could not be lyable for Annualrent but from the time that she recovered the same Castlenil Reporter Monro Clerk D. 267. Gray contra Cockburn eod die THE Lords Found In the Case betwixt the Laird of Cockburn and Mr William Gray Minister at Duns That Cockburn being lyable to pay certain Bolls of Victual betwixt Yule and Candlemass might have payed the same upon Candlemass day and that as he might have payed the same he might have made offer thereof but that in all cases of that nature Persons who are lyable and do make such Offers are not thereby liberate as to the greatest Pryces unless the Partie be in mora to receive the Victual either the time of the offer or six days thereafter Castlehil Reporter Monro Clerk D. 268. Heckford contra Ker. 17 June 1675. MR. Hugh Ker having granted Bond to _____ Heckfords for the Sum of 1000. merks and being obliged thereby to pay the said Sum with Annualrent at Martimass thereafter and for the Creditors surety having wadset by the said Bond ten rudes of Land to be possest for the annualrent of the said Sum so long as the samen should remaine unpayed The Representatives of the said Mr. Hugh were pursued for 6 lib. as the inlake whereof the Rent of the Land did come short of the Annualrent of the said Sum and for publict burdens who did alleadge that the said Right being a proper wadset and the saids Lands being possest by the Creditor the Debitor was not lyable neither for Annualrent nor Publick Burdens The Lords Found That the Bond being of the Nature foresaid and containing a proper Wadset so that if the Duties of the Lands had exceeded the Annualrent the superplus would have belonged to the Creditor entirely and not been imputed in payment of the Principal the Debitor was not lyable either for inlake or publick Burdens And tho in the beginning of the Bond the Debitor was obliged to pay Annualrent yet the payment of the same was qualified and to be understood according to the whole Tract of the Bond viz. That the Duties should be allowed for payment of the Annualrent and that the Creditor should possess and have the use and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Land and Rents thereof for his Annualrent which is clearly a proper Wadset Newbyth Reporter Mr. John Hay Clerk D. 269. Colledge of Aberdeen contra The Town of Aberdeen eod die DOctor Reid having by his Testament left his Books to the Colledge of Aberdeen to be kept by a Bibliothecare and having left for a Patrimony and Sallary to the Bibliothecare the Sum of 6000 Merks and having named Mr. Robert Dounie his own Relation to be Bibliothecare and in case of his refuseal having appointed another to be chosen by the Colledge And the Master of the Grammer School Mr. Robert Paterson being presented to the said Office by the Colldge pursued a Declarator to hear and see it Found and Declared that he has Right to the said Office and Sallary It was Alledged for the Town of Aberdeen That no Title was produced for the Pursuer but the Extract of Doctor Reid's Testament bearing the said Mortification which could not be respected seing the said Extract is out of the Books of the Commissars of Aberdeen and his Testament could not be confirmed but by the Commissars of Edinburgh he having died out of the Country and therefore the said Extract could not be considered but as a Copy and the principal ought to be produced And it appears that there was never any Principal bearing the Masters of the Colledge to have the Election of the Bibliothecare seing the Town of Aberdeen has been in use since the Mortification to present to the said Office and by a Contract in anno 1632. betwixt the said Mr. Dounie and the Town he is presented to the said Office by the Town to which Doctor Dun the Principal of the Colledge was Witness and the Executors nominate likeways Witnesses The Lords Found There was no necessity to produce the Principal the Extract being a sufficient Title and as to the pretended Nullity it was not Juris seing non constat that Doctor Reid died out of the Coutry And if there were any Ground upon the pretence foresaid it were only of a Reduction It was Found also That by the said Testament the Nomination of the Bibliothecare did belong to the Colledge and the possession of the Town without a Right cannot Found a Defence in petitorio and the Deed and Contract with Dounie and the Subscription of the Principal and of the Executors of Doctor Reid as Witnesses could not prejudge the Colledge The Lords having considered the Tenor of the Mortification which gives Power to the Colledge to Name in case of Refusal of Dounie Found nevertheless that the said Interest to Name and choose a Bibliothecare was not temporary and prima vice Seing Wills of Defuncts were to be interpret benignly Especially in favours of Colledges and there can be no
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs
and her foresaids in an Annualrent effeirand to the said Sum out of his Estate beginning the first Terms payment at the Term of Whitesunday or Martinmass after the FailÈie of Heirs of his Body in case they faill with this provision that in respect the said Infeftment is not to be effectual but in the case foresaid it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription And that the same shall not Commence or begin to run until the said Right become effectual in the case foresaid Publick Infeftments IF an Annualrent to be holden of the Disponer be confirmed by the King Quaeritur If that Confirmation will make it publick If an Annualrent be Disponed out of diverse Lands to be holden of the Granter and a Decreet of poinding of the Ground be got as to some of the Lands will it make the Right publick as to others Inhibition INhibitions upon Bonds or Contracts if they import only that nothing should be done in prejudice of the same and execution thereupon So that the person having reduced upon the Inhibition cannot make use of the same to sustain any Right but such as Depends upon the Ground of the Inhibition Both the person Inhibited and the person receiver of a Right being out of the Countrey the time of the Inhibition Quaeritur If the Right be Lyable to Reduction Ratio Dubitandi Both the Inhibited and the party Receiver should be certiorated and put in mala fide And as the Person Inhibited is not certiorate if he be out of the Countrey if the Inhibition be not Execute at the Peer and Shoar of Leith so there is eadem Ratio as to the Lieges An order being used upon a Conventional Reversion or Legal against 〈◊〉 Person Inhibited Will the Inhibition affect the Renounciation granted by him seing he may be forced to give it and it has Dependence upon a Right before the Inhibition If an Inhibition being Execute against the Debitor only and being in cursu only as to the Inhibiting the Leiges where the Lands lye being at a great distance and Intimation in the mean time to the party who is about to bargain with the Debitor will put the said party in mala fide So that there may be a Ground of Reduction Ex capite Inhibitionis against the party Inhibited and that the said Right is fraudfully made and accepted without a necessary cause in defraud of the Creditor and after intimation of his Diligence A whole Barony of Land being affected with an Inhibition and being thereafter Disponed in several parcels to diverse persons If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts for his Relief they being in rem correï debendi Vide Annualrent Quaest 1ma If after an Inhibition is Registrate and Fourty Dayes are past if the Creditor getting notice that his Debitor has Lands within other Shires may inhibite the Leiges there and Registrate within Fourty Dayes And if in that case the Debitor must be himself again certiorate By a Minute an Estate much incumbered being Disponed and the price being agreed upon at a certain rate per Chalder or 100 Merks But so that the Incumberances should be purged by the price pro tanto and any Ease by the Creditors should redound to the Seller and the whole incumberances being purged the Buyer should Compt for the superplus of the Free-Money and should pay beside 20000 Merks after all is purged Quaeritur Whether the Benefite of the said Contract can be affected with an Inhibition or with Arrestment at the instance of Creditors of the Disponer Ratio Dubitandi The said Benefite is not Liquid If Inhibition does affect Lands acquired after Inhibition Answer Affirmative The Debitor not being Discharged to Dispone the Lands he has presently but simply his Lands and Estate If at least it affecteth such Lands as are acquired within the Shire where the Inhibition has been used Quaeritur If Inhibition doth affect Bonds though Moveable by the Act of Parliament so that the Creditor cannot Assign the same Quaeritur If Inhibition doth affect Bonds so that the Creditor cannot thereafter Assign the same Ratio Dubitandi That it is thought they affect only real Estates and Interests and there is no mention of Bonds and Debts which are Personal and they come not under the General of Goods and Gear which are real things Whereas Debts are Nomina and Entia Juris Rationis If Inhibitions affect Lands acquired thereafter The Ratio Dubitandi is No Diligence can affect non Ens and what did not belong to the Debitor And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye much less can it affect Lands that has not Situm as to the Debitor and does not pertain to him and the narrative of the Inhibition is that the Debitor intends to defraud his Creditor by putting away his Lands which does not militate as to Lands which he has not then A Bond being granted after Inhibition and thereupon the Debitor being denounced and his Escheat Gifted Quaeritur If the Horning and Gift may be Reduced ex capite Inhibitionis Ratio Dubitandi That the Ground being taken away the Superstructure falls so that the Bond being reduced the Horning doth fall Contra The King is not concerned upon what Ground the Rebel is at the Horn if the Horning be valid and formal and the Inhibition doth import only that the Debitor should not give any voluntar Right whereupon his Estate which is the subject of Execution for Debt may be taken away but not if he should commit Crimes either of Treason or should be Rebel or do deeds wherupon Recognition may follow That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture Liferent-Escheat c. George Marshal contra Inhibition upon Teinds IF Inhibition upon Teinds interrupteth prescription without a citation specialy where the possessor is in possession by a Right If Inhibition puts a party bruiking by a Right in mala fide so as before his right be reduced to be lyable for bygones after the Inhibition Tweeddale If to the effect foresaid he be in mala fide because being Commissioner for the Earl of Lauderdale he prevailed upon the same Grounds against Oxenford Insinuatio DOnationes quae excedunt summam quingentorum solidorum sive aureorum insinuandae sunt ut effusae donationes coerceantur ne fraus struatur Creditoribus falsis donationibus Insinuatio est publicatio donationis apud acta vel ejus quod agitur apud Judicem in scripturam redactio Perez Inst Lib. 2. tit 7. Instance BY the common Law of the Romans and by the custome of France Instantia perit after three Years as to all effects of it v. g. Interruption of Prescription But without prejudice of the Action if it be not
prejudged to question or dissolve the Marriage as null or dirimendum upon that or any other Ground If a Marriage be unlawful and either of the Parties be in bona fide which doth legitimate the Children Quaeritur If these Children will succeed with other Children of lawful Marriages at least to their Parents If they will succeed to their other Kinsmen or if the Legitimation will only import that they are not Spurij and that they have Testamenti factionem If a marriage after Inhibition may be reduced upon that ground What are the Legitima Remedia to compell parties to consummate marriage upon Contracts Whether they may not only be decerned by the Commissars but by the Church under the pain of Ecclesiastick censure Where some Lands hold of the King Taxt-ward and others hold of him Simple ward Quaeritur will he get both the simple Marriage and the taxt Sir Iohn Cuninghame saith it was decided in the case of Innernytie for both Marriage being dissolved within year and Day whether the Gifts and Jocalia given hinc inde may be repeated Item whether the gifts given by friends will fall under communion So that the Maxim that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been Is only to be understood of Dos Donatio propter nuptias If an old Woman super annos and past the age of Marriage being about Threescore years shall succeed in the Right of ward-Lands whether Marriage will be due Iohn Bonars Heir Quid Juris if a widow either man or woman inter annos nubiles shall succeed to Ward-lands Barclay of Pearstoun If a Person have only two acres or a mean interest in Ward-lands but a very great interest otherwise Whether will his Marriage be considered with respect to his whole Estate Seing the Marriage of appeirand Heirs belongs to the eldest Superiour Quaeritur who shall be thought the eldest Superiour whether the eldest as to the Lands or as to the Vassal and if it be to be considered which of the Lands was first given in Tennandry Quid Juris when a Marriage is fallen but not declared nor gifted A Marriage being contracted betwixt a woman Pubes and one that is impubes Quaeritur If it be a Marriage at least as to her so that she cannot marry with another in the interim that he is not pubes Ratio Dubitandi That a Contract being mutual cannot Claudicate A Father by his daughters Contract of Marriage having disponed to her and the second Son of the Marriage and the other Heirs therein mentioned his Estate under Reversion and certain other Conditions and in special if he should ordain a certain Sum should be payed by these who should succeed to the Estate to his Daughter and her forsaids and the said contract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband Quaeritur If the Marriage be dissolved within year and day without Children whether the Contract will be ineffectual as to all intents as being causa data non secuta cum effectu Or whether it be as to the Right of the person of the Daughter either as to the Estate or as to the said Sum ipso facto void at least reduceable And whether she may repeat the Tocher from the Husbands Heirs Lady Yesters contract of Marriage being dissolved within year and day A person being Heir to his Father in a great Estate holden blensh And having a small piece of Land holding ward which he may succeed to as Heir to his Father Quaeritur If notwithstanding he is Heir general and Heir in special in the Lands holden blensh he needs not Enter to the saids ward Lands in order to be free of a Marriage which would be considered with respect to the whole Estate Ratio Dubitandi That being Heir as said is otherwise he cannot refuse to be Heir of the said Lands Answer It is thought that if he was charged to enter Heir in special at the instance of a creditor in special he could not renounce But the superior cannot urge him to Enter but will have only the benefite of a Nonentry Seing the said other Lands and any interest he had as general Heir are distincta patrimonia from ward Lands and he may owne the one without the other If the superior may affect and evict the said ward Lands by adjudication for the Marriage of the appearand Heir considered with respect to his other Estate in prejudice not only of the appearand Heir but of any who should thereafter be appearand Heirs Ratio Dubitandi That the Marriage being but a Casuality may exceed more than the double of the value of the Lands which is absurd Cogitandum If the appearand Heir will notwithstanding be lyable to the Marriage albeit he doth not enter nor renounce to be Heir as to these Lands Ratio Dubitandi That Refutatio of vassals is not admitted unless they satisfy the casualities already fallen Answer It is thought he may renounce and be free of the casualities personally without prejudice to the superior to affect the Ground and the case is different from that of vassals infeft Seing they having accepted the Right they cannot offer to renounce unless they pay what was formerly due to the superior being fructus Dominij whereunto not only the Ground but they are lyable personally by reason of their Right and possession and it cannot be said that the appearand Heir has either Mortounhall There being diverse Adjudications of Land holding ward within year and day but Infeftment only upon one and that adjudication whereupon Infeftment is being before the debitors decease and therefore stopping the Ward and the rest after but within year and day of the first Infeftment Quaeritur If the first be satisfied by intromission may the superior claim the Ward of the appearand Heir of the Debitor being Minor in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors and doth not prejudge superiors of their Right and casualities and the adjudger Infeft is only vassal and the other adjudgers are not vassals and by them the superior can have no casuality either of Liferent Ward or Marriage Cogitandum L. Bancreiff When diverse Lands are holden of the King some in simple Ward and others Taxt as to the Ward and Marriage Quaeritur when the Marriage falls whether the King will have both the simple Marriage and the taxt Marriage Answer That since at one time there can be but one Marriage there can be but one Casuality for the same and as the King would have but one Marriage albeit there be diverse Lands holden ward of him simple-Ward So in the case foresaid where there are some taxt he cannot have two Marriages and the taxt being only aestimatio where there can be no Marriage there can be no Taxt due The same question may be of Lands holden simple and Taxt-Ward
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
Alexander Binnie and to do no deed in prejudice of his Succession She did thereafter Marry and Dispone to her Husband the said Tenements In a pursuit at the instance of her Brother against her and her Husband for his Interest upon the said Bond and for implement thereof The Lords Found that she with consent of her Husband ought to Resign Some of the Lords thought that the import of such obligments is only that the Granter should not alter such TailÈies in favours of other Heirs And that they are not restrained to sell or Dispone for onerous Causes if they should have occasion otherwise they should cease to be Fiars The very Essence of Fee and Propertie consisting in a liberty to Dispone It may be questioned how far the Husband may be lyable to his Wifes obligments before the Marriage For there being a Communion betwixt them only as to mobilia it may appear that he should only be lyable to Movable and Personal Debts Seing penes quem Emolumentum penes eundem Onus but this point was not Debated D. 137. Straquhan contra Morison Eod. die A pursuit for SpuilÈie being restricted to wrongous Intromission It was Alledged that the Defenders are only lyable for their intromission respective in so far as it should be proven that each of them had intromitted at least pro virili and conjunctly It was Replyed that the Defenders being conveened Ex delicto they are lyable in solidum as Correi being all accessorie to the wrong And the pursuit as it is Restricted is not for Intromission simply but wrongous Intromission And though the Pursuer by restricting the Pursuit as said is has precluded himself as to violent profits and juramentum in litem and other consequences of spuilÈie he has not prejudged himself as to that benefit that all who are accessory to the wrong should be lyable in solidum which the Law has introduced upon just ground seing it is impossible in such cases where diverse Persons do intromett to distinguish and prove their intromissions The Lords Found the Defenders lyable Conjunctly Wedderburn Sinclair Straquhan Alteri Lockhart Thoirs D. 138. Pollock contra Pollock Eod. die THe Lords having considered the Renunciation mentioned above 20 of Novem. 1667 Found that it being in favours of the second Marriage and in Effect an Assignation could not accresce to the Granter D. 139. Birnie contra _____ Eod. die MR Andrew Birnie having granted a Bond blank in the Creditors name to his Good-brother Short the Creditors name being thereafter filled up Mr Andrew Birnie suspended upon double poynding against him and another Creditor of Shorts who had thereafter arrested The Lords preferred the Person whose name was filled up In respect he had shown Mr. Andrew the Bond before the arrestment and desired him to satisfie the same though he had not made intimation by way of Instrument This Decision seemeth to justle with that of the 9. November 1665. Jamison contra Tealzifer D. 140. _____ and the Laird of Innes her Husband _____ contra _____ 21. Jan. 1668 THE Laird of Rosyth having provided his Daughter of the first Marriage with the Laird of Innes to 10000. Pounds at her age of Twentie years and there being no obligement for Annualrent The Lords in a Process at her instance for her aliment modified 600. Merks yearly Some were of opinion that the said sum being payable at the foresaid Term the Annualrent of the same should not have been modified for the time thereafter and that she should be in no worse case than if it had been payed D. 141. Shaw contra _____ Eod. die THE Lords Found That a Wife being provided in Lecto by her Husband her provision should be restricted and Sustained as to a Terce she being no otherwise provided before D. 142. Home contra Tailzifer Eod. die AN Exception of Improbation being proponed against a Writ and thereafter Tailzifer of Harycleugh being desired to abide at it he declared that he had gotten it as a true Evident and condescended upon the way he had gotten it and it being alledged that he ought to be positive Whether he would abide at it or not The Lords declared That after probation they would consider how far his using and abiding at the said Write should import against him and if he be in bona fide to use the same D. 143. Dowglas contra Lady Wamphray 22. Janu. 1668. THE Lady Wamphray being provided in an Annualrent out of Lands without respect to a Sors or Stock and being infeft It was Found that she ought to be lyable to Taxations and publick burdens being onera patrimonialia though the said Annualrent was payable to her alswel infeft as not infeft D. 144. Justice contra Stirling 23. Janu. 1668. IN the Case Justice and his Tutors contra Stirling and Cockburne her Husband a Bond being granted to a Husband and his Wife the longest liver and the Heirs betwixt them which FailÈieng to the Heirs of the longest liver And the wife having survived there being only one Child of the Marriage The Lords Found that the Fee of the said Bond belonged to the Husband as dignior persona And that the Child had Right thereto as Heir to him and that the Heirs of the Wife could have no Right after the Childs decease as Heirs of provision to the Child And that the Wife had not the Right of Fee which she pretended to be in suspence until it should be determined by the death of either who should be the last liver D. 145. The Town of Glasglow contra _____ Eod. die THE Town of Glasgow having a Right from the Bishop to the parsonage Teynds pursued a SpuilÈie It was Alledged for some of the Defenders that they possessed by Subtacks from Blantyre Tacksman It was Answered that Certification was granted against the principal Tack and that the Subtacks were void in consequence It was Replyed that the Defenders were not called to the Improbation and that they being in possession the Collusion or negligence of their Author cannot prejudge them The Lords upon a debate amongst themselves Thought that Sub-vassalls being in possession ought to be called in an Improbation against the Vassal their Author because they could not be miskenned being Heretable possessors But as to the Tennants bruiking Lands by tacks or Heretors bruiking by Subtacks their own Teynds They thought that it could not so well be known that they had Right and so were not parties necessary to be called And therefore before Answer they ordained to condescend upon the manner and quality of their possession and whether it was such as the Bishop could not but know Sinclair Lockhart alter Cuninghame D. 146. Simpson contra Adamson 24. January 1668. UPon Report it was Debated among the Lords whether a Decreet of poinding the Ground should interrupt prescription of an Annualrent right being only against the Tennants the Heretor not called Some were of the opinion that the Decreet being null nullum sortitur
Patrimony of the Town but that the same had been acquired by the Town and thereafter had been Feued out by them in the Terms foresaid for payment of a Feu-duty pro omni alio onere they were of the opinion that they could not be Lyable to a Servitude unless the same had been constitute either by their Infeftments or otherwayes But specially in this case they being free by their Infeftment and express Clause therein of all burden or Servitude but their Feu-duty And that they could be in no other case than if the Town of Edinburgh should Feu any of the Lands lately acquired by them for payment of a Duty pro omni alio onere And yet the plurality of the Lords were of the opinion that if the Town could prove and make appear that they have been in use by the space of 40 years or above to Stent their Feuars for defraying their Affairs and Burdens and Works of the Town that they ought to be Lyable notwithstanding of the said Clause pro omni alio onere And accordingly before Answer a Term is Assigned for proving the Towns Possession In the interim The most Eminent of the Advocates and in special such as were for the Town being discharged pleading upon occasion of the Appeals this case came in Agitation the last Session and some of the Lords even these that were of the opinion formerly that the Feuars should not be Lyable to be stented upon the ground and mistake foresaid that the said Lands of Drakes was not a part of the Ancient Patrimony of the Town they were convinced upon the production of the Towns Evidents that the said Lands were a part of the Ancient Patrimony of the Town being Incorporate and contained in their Infeftments with the Burgh it self bearing one individual holding and Reddendo And therefore conceiving that est Judicis supplere quae desunt Advocatis in Jure and which arises upon production of the Papers they did argue that the Feuars ought to be Lyable for these Reasons 1 That there is a difference betwixt the Original Patrimony of the Town which is profectitious and flowes from the Bounty of Princes and is given to Burghs Royal for sustaining and defraying their necessary burdens and occasions and betwixt that which is adventitious and acquired by Burghs themselves by their own Moyen and Means As to the first The same being given eo intuitu and to the end that it should be a Stock for doing and defraying the Common Affairs and burdens and Charges of the Town it cannot be given away nor Feued but cum sua causa and so that they should be Lyable to Stents and Impositions upon occasions requireing the same Whereas the other is acquired by Towns as quilibet and the Feuars ought to be considered as quilibet and as in the case of other Feuars 2. Upon the consideration foresaid it is statute by diverse Acts of Parliament and in special by the 36. Act. K. Ja. 4. Parl. 3. And the 181. Act. K. Ja. 6. Parl. 13. That the Common Good of Burrows should be observed and keeped to the common profite of the Town And the said Act of K. Ja. 4th bears That Lands Fishings Milns and others belonging to the Burrows should not be set but for 3. Years allenarly and if any be set otherways that they be of none avail And as this is Law so it is just otherwayes those who have Tenements within Burgh and who upon occasions are Lyable to be Stented should be unjustly and heavily prejudged if the Lands and Fishings which being in the Towns hands would be lyable in the first place to such Burdens may be given away so that the whole burden should be rolled over upon them 3. The foresaid pretence That the Feuars were Lyable only to the Feu-duty pro omni alio onere was Answered viz. That omne aliud onus was to be understood of any other ordinar duty payable to the Town as Superiors but does not exempt the Feuars from these munera extraordinaria Patrimonialia for the necessar use and preservation of the Town As in the case of Lands disponed to be holden of the Disponer for payment of a Blensh or other Duty pro omni alio onere The Clause foresaid will not exempt the Vasal from Taxations and the Superiors relief of the same against his Vasal 4. It appears by a Ratification of Queen Mary produced for the Town That the Town of Innerness had made diverse Acts concerning the setting the Lands Milns and Fishings which are ratified by the said Queen And which if they were observed would oblige the Feuars to be lyable to to be Stented The saids Lords Who were of the said opinion thought That upon the Grounds and Production foresaid the Feuars of Drakies ought to be lyable without any farther probation to Stents imposed for the use and interest of the Town the same being imposed necessarly and equally according to the method abovementioned And yet the Town having adduced probation by production of the Records out of their Books and Witnesses they considered and thought that the possession of the Town by imposing their Stents by the space of 40. years was proven In respect it appeared by the Extracts out of their Books That from the year 1624. until 1664. they have been in use to impose Stents in case of Exigency for the private use and concerns of the Town Notwithstanding of what was alledged at the Bar against the said probation and in special that the Books themselves ought to be produced whereas there was nothing produced but Extracts of Acts and that the probation that the Town has been in use to Stent for repairing their Bridge did not quadrate to the case and point in question seing it was to be proven that Stents were imposed for the private use and concerns of the Town and the Bridge and repairing of the same is of publick concern and interest relating not only to the good of the Town but of the whole Shire And the Record anent Stent in relation to the Bridge being out of the way and not considered as a probation It was not proven that the Town had been in Possession 40. Years Nevertheless The plurality of the Lords did Find the Alledgeance foresaid of Possession by the time foresaid not proven upon that ground that the Bridge was not to be considered as the proper concern of the Town And did suspend and declare in favours of Inches and other Feuars Diverse of the saids Lords dissenting upon the Grounds foresaid and that it appears to them that the Feuars upon the account of their Lands were Lyable to be Stented being the ancient and proper Burgal Patrimony of the Town And albeit a continued tract of Possession by the space of 40. years which hardly is to be expected in servitutibus or impositions that are discontinue could not be made out as they conceive it was yet the Feuars having homologate and consented and submitted to
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
Son cannot be said to have Right or to Succeed effectualy before that time and so ought likewise to be lyable to the Debts contracted at any time before his Fathers decease D. 131. Balmedie contra the Baillies of Abernethie 15. Jan. 1668. A Decreet at the Procurator Fiscal's Instance of the Regality of Abernethie before the Baillie of the Regality against the Weavers in the Town of Abernethie for contraveening the Act of Parliament 1661 Anent the breadth and bleetching of Linnen Cloath was suspended upon that reason that the Bailies within the Town of Abernethie were only Judges competent to the Inhabitants within the Burgh The Lords Found that the Town being only a Burgh of Regality had jurisdiction within the same And the Baillies jurisdiction is Cumulative and not Privative unless they had it expresly by their Infeftment Privative and that in such cases Locus est Praeventioni D. 132. Parkman contra Allan Eod. die IN the late War betwixt his Majestie and Holland and Denmark a Swedish Ship being taken by a Scots Caper and adjudged Pryze A Reduction of the Admirals Decreet was pursued upon diverse reasons and in special this That by the Treatie betwixt his Majestie and the Crown of Sweden the Subjects of Sweden may traffique with their Alleys though Enemies to h s Majestie with freedom and carry in their Ships Counterband Goods Except such as are contained in an Article of the said Treaty being for the most part Armes and Instrument a Bellica and that the Goods in question which they had carried in their Ships to Holland viz. Tarr and stock fish were not of that nature 2. That when the said Ship was taken there was none of the saids Goods aboard and that it could not be declared Pryze upon pretence That immediatly before they had carried the said Goods to Holland seing it is not unlawful not a breach of Treatie betwixt his Majestie and Sweden that the Subjects of Sweden should continue the same intercourse and freedom of Trade they had formerly with their friends though now the Kings Enemies and if they carrie counterband Goods the only hazard is that if they be deprehended carrying the same They may be confiscat conform to the Treatie with Sweden bearing si Deprehendantur which is Consonant to the custom of all Nations and of the Admirality of England It was Alledged that the Ship in Question should not have the benefit of the Treatie having Served the Danes the Kings Enemies and being fraughted and loaded with Tarr from Noraway upon the account of Danish Merchants and with stock Fish which they had carried to Amsterdam That it was expresly provided by the Treatie with Sweden that they should not carry bona hostium and that tho the Danes were not the Kings Enemies yet Tarr and Stock-fish are Counterband Tarr being a Material so useful and necessary for a Naval Warr and that by the Treatie Commeatus is counterband and Stock-fish falleth under the notion of Commeatus and that by the Commission given by the Admiral to the Capers they are empowered expresly to seize on Ships not only while they have counterband Goods caryeing to his Majesties Enemies but upon the return having sold and disponed upon the same It was Replyed 1. That by the Law of Nations which is clear from Grotius de Jure Belli Goods that are usus promiscui both in Warr and Peace are not vetita and counterband and two Nations being engaged in Warr with others that are at friendship with both are allowed libertie of Trade with either as to such Goods And that Tarr is of that same nature and Commeatus except in the case of portus clausus or Civitas obsessa and from which deditio may be expected if not supplied 2. His Majesties Declaration of Warr with Holland bears that Ships carrying counterband to Holland if they be mett with carrying the same may be seized and that his Majesties Declaration Emitted of purpose in relation to other Nations should be considered as lex Belli and not a privat and unwarantable style of a commission given periculo petentis In this many Points being debated It was Found by the Lords that Tarr is Counterband 2. As to that Point whether a Ship having carried counterband Goods to Enemies may be seized upon in her return home-ward having sold and vented the same to the Enemies and not deprehended carrying the same They thought fit to know his Majesties pleasure and the custom of England and a Letter was writen to my Lord Secretary to that purpose 3. The Ship in question having carried counterband Goods to Holland and having thereafter made a Voyage to France and there having taking a new Loading of Salt upon the account of the Owners and being taken upon her comeing from France If it should be found that she might have been seized upon pretence that they had carried the said Goods to Holland It was Debated whether the Return should be understood of the immediat Voyage from Holland to France or until they should return to Sweden And as to this part the Lords thought good to take advice of Merchants In praesentia Lockhart Wedderburn alt Wallace vide feb 4. 1668. D. 133. Mckitrick contra _____ Eod. die THE Prescriptions of Reversions and Expiring of Legals and the taking advantage of the same are so odious That the Lords inclined to find that necessary Depursments upon reparation of Houses should not be allowed to a Compryser in a Declarator to hear and see it found that he was satisfied by intrommission reserving action to him for the same But before answer they ordained the Reporter to consider the Depursments and to Report whether they were absolutely necessary This is hard in the point of Law intromission being to be understood civiliter cum effectu of that which is free all charges deduced Hay Clerk D. 134. Trotter contra Trotter Eod. die THE Lords Found that a Wadsetter having comprised for his principal Sum may in competition with another Compryser pass from his Comprysing and return to his former Right of Wadset Gibson Clerk D. 135. Anderson dean of Guild of St. Andrews contra James Tarbat 16. January 1668. WIlliam Tarbat having granted Bond for 300 pounds to his Son James and other Children the said Bond was Reduced at the instance of a Creditor Because it was subscribed only by one Notar being a matter of importance Though it was alledged that it resolved in three several Bonds and it was Equivalent as if the three Bonds had been granted for 100 pounds respective For the Lords considered that the Bond being one and individual the importance as to the interest of the debitor is the same whether it be granted to one or to diverse Persons D. 136. Binnie contra Binnie 17. January 1668. MArgaret Binnie being induced to grant a Bond obliging her to resign some Tenements of Land in favours of herself and the Heirs of her Body which FailÈieing in favours of her Brother