the same case as if he had Comprysed himself so that as he cannot in that case neither in the other can he claim any Composition in respect the samen is granted only that the Superior should not be prejudged by obtruding a Vassal upon him against his will If by the First Act of Parliament anent Comprysings a Composition was due to the King Answer It is thought not There being a difference betwixt the King and other Superiours in respect the King is Pater Patriae and all the Leidges being his Subjects it cannot be said that he has any prejudice by the change of his Vassal and long after the said Act of Parliament Signatures were not past upon Comprysings but Comprysings lay at the Signet and were the warrand of Charters under the Great Seal To try when that Custom was changed and what warrand was for changeing the same A Person having Comprysed Lands and having granted Bond that he being satified of the Sums due to himself and of the Sums due to another person and that other person being relieved of his Cautionry for the Debitor The Compryser should denude himself in favours of the Debitor And the said Compryser having thereafter Disponed the Right of the Comprysing but with the Right of the said Backbond expresly provided in the Disposition and the Procuratory of Resignation therein Quaeritur If there be no mention in the Seasin that the Right is with the said Burden whether the Compryser will be still Lyable by the said Backbond to the Persons in whose favours it is conceived And 2do If the said Back-bond will militate against a singular Successour acquiring a Right from the Assigney to the Comprysing Answer It is thought both the Compryser and the person having Right from him with the Burden of the Backbond will be Lyable 2do A singular Successor will not be Lyable unless the said Provision that the Right should be with the burden of the Backbond be in Traditione and in the Seasin Quaeritur What way shall the Appearand Heir have the Right of the Lands Comprysed where the Comprysing is extinguished by Intromission If it be not by a Service as Heir to his Father Answer He may give in a Bill to the Lords or intent Action against the Superiour on that ground That the Lands are in effect redeemed and satisfied by Intromission And that the Superiour and the Creditor being conveened it ought to be declared that the Lands are Redeemed and the Creditor ought to renounce and the Superior be decerned to Infeft When a Person is denuded by Infeftment and yet the Infeftment and Disposition whereupon it proceeds is Reduceible upon the Act of Parliament as being in Fraudem Creditoris Quaeritur What course the Creditor shall take and whether he should first reduce before he Compryse Ratio Dubitandi That if he compryse the Debitor being divested as said is there is nothing in his person to be comprised Answer It is thought it is fitter to Reduce and then to Compryse Because after the Creditor has been at the Charges of Comprysing it may be there may be difficulty in the Reduction And yet upon other Considerations it may be fitter first to Comprise in Respect the Lands may be Comprysed both for the Debt of the Disponer and the Debt of the Person to whom the Right is given Infeftments upon Comprysing WHen there is a Clause in a Charter upon Comprysing That if the Comprysing expire another Infeftment should be taken within Year and Day otherways the Infeftment to be void Quaeritur What is the effect of that Provision if it may be purged 2do If another Compryser may object the said Nullity Conditio COnditio est adjectio quâ id quod dari aut fieri volumus confertur in aliquem casum suspendit obligationem Conditione impossibili adjecta Contractus est nullius momenti contrahentes Ludere videntur secus in sponsalibus ultimis voluntatibus in quibus favore Matrimonii ultimae voluntatis tales conditiones habentur pro non scriptis Christen de Sponsalibus quaest 14. Confession by Criminals IF a Confession be emitted and signed before the Judge in the Criminal-Court may the Pannal Retract and not adhere to it before the Assyse so that the Inquest cannot proceed on it as an evidence and clear Probation Minors having confessed hainous Crimes may they desire to be reponed upon pretence of their Age though they do not pretend and clear that their Confession was upon Error or Mistake Confirmation A Feu of Church-Lands being neither confirmed by the Pope nor King If the Confirmation by the King of Rights granted thereafter by the Feuer to be holden of the King will supply the want of Confirmation of the Original Charter When a Person is Infeft to be holden of the Superior and deceaseth and both the Disponer and Superior that was for the time are deceased yet the Superiority is conveyed to a singular Successor Quaeritur If after long time the singular Successor in the Right of the Superiority may confirm the said Infeftment So that the Heir of the Person Infeft though not confirmed in his own time may be Infeft as Heir to him by a publick Infeftment Ratio Dubitandi It cannot be said that his Father was Infeft by a publick Infeftment To consider therefore whether the Party infeft being infeft to be holden of the Superior may be said to be truely infeft holden of the Superior But that the Infeftment was not a compleat Right until the Superiors Consent and Confirmation was had whereby it did convalesce as if it had been from the beginning Or if there be no mid impediment And there is a Difference betwixt Vitiosum ab initio Incompletum illud nunquam confirmatur istud accedente complemento convalescit Whether or not Confirmation may be granted after the Death of the Disponer Vide Craig If a Disposition be granted to be holden of the Superior containing a Precept of Seasin and if it be confirmed by the Superior but before Seasin follow thereupon the Superior is denuded of his Right in favours of his singular Successor Quaeritur If thereafter Seasin may be taken on the said Precept Ratio Dubitandi That Res devenit in alium casum and the former Vassal not being denuded he remains still Vassal to the succeeding Superior So that by no deed without his consent a new Vassal can be obtruded to him Quaeritur If Infeftments being to be holden of a Superior may be confirmed after the death of the Person infeft Ratio Dubitandi Craig seemeth not to be clear upon that Ground that the Superior and Vassal should both consent So that the consent of the Vassal in taking the Infeftment and the Superiors in confirming the same be conjoined which cannot be the death of either interveening It is thought nevertheless that such Rights may be confirmed after the Death of the Receiver though their Consents cannot be conjoined which was only done and when the
the Forefaulture and Commission and Disposition made by vertue thereof and ratifying the same and conform thereto giving and Disponing the Lands therein-contained Ripae Ripatica USus Riparum est publicus cuilibet licet naves ad eas appellere Ripae enim hanc servitutem debent flumini cujus usus sine usu riparum nullus est servitus ista a natura imposita videtur ut usu fluminis concesso ea concessa intelligantur sine quibus eo uti non possumus Jus Fluviaticum p. 28. n. 362. Ripatica penduntur pro trajectione quae navi fit ab una Ripa in aliam sunt omnia Emolumenta reditus quae Princeps capit in Ripis fluminum vectigalia scilicet potestas cogendi ad muniendas Ripas Idem p. 30. n. 375. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters IT being the Custom of the Country in some places That Lands consisting of Grass-Roums are Yearly set from Whitesunday to Whitesunday thereafter for payment of a Silver Duty at Martinmass after they are set Quaeritur Therefore If the Fiar survive the Whitesunday but dieth before the Martinmass if he will have any part of the Martinmass Duty Or if it will belong entirely to the Relict Liferenter or next Fiar Answer It is thought That he nor his Executors would have no part of that Duty being payed for the said Year betwixt Whitesunday and the next ensueing Whitesunday Seing he deceased as said is before Dies either cessit or venit Monmouth In some places Grass-Roums are set from Whitesunday to Whitesunday but the Term of Payment is Candlemass and Lambmass Quaeritur If the Fiar decease after Martinmass after it is set but before the first Term of Payment if he will have any part of that Years Duty Answer It is thought he will have the half and what ever be the Term of Payment Dies cedit at Martinmass for the half Year preceeding Seing for the Duty of Corn-lands though payable betwixt Yule and Candlemass yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid Quaeritur What is the reason of so great difference betwixt these and Grass-Roums Answer That the Duty being payed for the Cropt the Terms of Whitesunday and Martinmass are respected so that the Fiar surviving Whitesunday his Executors have Right to the half of the Year upon that consideration as appears because the Lands are then fully laboured and Sowen and whoever survives Martinmass has Right to that Terms Duty because the Cropt is then fully collected But as to Grass-Roums set as said is at Whitesunday to Whitesunday thereafter the Grass only is to be considered which upon the matter is the Cropt of these Roums and the reason why the Duty of the whole Year is payed at Martinmass appears to be that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts at or before that time Quaeritur If the Fiar decease after Martinmass and has not uplifted the Duty will the same divide betwixt him and the Liferenter And if he has uplifted the same if his Executors would be Lyable to refound the half to the Liferenter Answer Cogitandum For if it be not uplifted it appears reasonable that the Liferenter should have the half and if it be uplifted it appears hard that the Fiar having uplifted the same Jure suo bona fide should be Lyable to render any part of the same specially seing the Liferenter may have the same advantage if she should decease after Martinmass If Corn Roums should be set in the same Terms That the Duty should be payed at Martinmass after they are set Quid Juris Seing the said payment will be before the next Cropt and the Fiar may die before both the Terms of the next Year for which the Duty is due Answer It is thought that the Fiar cannot set the said Lands in manner foresaid in prejudice of the Liferenter And if the Tennent take the same that way it is upon his own hazard And the Liferenter would force him to pay the Duty after the ordinary Terms of the Country Quaeritur If a Tennent have a Liferent-Tack and he Die after Whitesunday If the Tack will not continue for that Year Seing the time of Removing of Goods necessary for labouring is past before his decease and Roums being set from Whitesunday to Whitesunday annus coeptus as to Labouring habetur pro completo Vide Annuum Legatum Quaeritur If there be not the same reason as to Liferenters in Labouring or possessing the Land with their own Goods seing their Executors cannot remove the Goods after that time and the Year of the Liferent is begun S. Act Salvo QVaeritur If Ratifications in Parliament with the Clause That they should not be Lyable to the general Salvo Will prejudge a third Petson having undoubted Right and having been secured by a general Law viz. The Act Salvo Jure The Ratification being only a private Act and the persons concerned not being called Seasin A Posterior Seasin but first Registrate whether will it be preferred to the prior Seasin Registrate thereafter though debito tempore Registration of Seasins IF a Seasin of Reversion granted by a Bishop will militate against the Successor albeit it be not Registrate in the Register of Seasins Ratio Dubitandi The Bishop doth not succeed as Heir And yet he cannot be said to be a singular successor and Bishops they are Corpora singula Special Services and Precepts of Clare constat A Person being served Heir-male or Provision in special in certain Lands and deceasing before he be Infeft Quaeritur If his general Heirs will be lyable to the Debt of that person to whom he was served Special Heir The same Question may be moved upon a Precept of Clare constat whereupon Infeftment has not followed seing in neither of the said cases there is Aditio Haereditatis before Infeftment whereas in general Services there is Aditio as to any Estate whereupon there is no Infeftment Servitude and Extinguishment thereof IF a Person who has Right to a Servitude out of other Lands should acquire also Praedium Serviens Quaeritur If eo ipso that he has Right both to Praedium Dominans Serviens the Servitude doth extinguish Quia res sua nemini servit and if he should thereafter Dispone Praedium Serviens whether the said Servitude not being reserved either he or his singular successor in the Right of the other Lands can claim the same Or if he should Dispone praedium Dominans without mention of the Servitude but with all Liberties and pertinents whether will that Servitude revive as being only Sopita for the time while both Lands belonged to one person but not extinct by any Discharge or deed freeing the Lands of the same If a person has constitute by Writ a Servitude and thereafter Dispone his Lands without excepting of the same Quaeritur If
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 ãâã ãâã ãâã ãâã ãâã 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
delictum If Marriage be real and affects in prejudice of singular Successors Ratio Dubitandi Hope is for the Affirmative and alledgeth Decisions To consider Haltons case On the other part in Novodamuses amongst incumberances that affect there is no mention of Marriage 2do The Marriage respecteth not the Lands but the person and his other Estate as to the value 3tio It may appear to be a personal Prestation whereto the person and his Right dureing his and his Heirs time is Lyable but doth not affect a singular Successor as in the case of Ward A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King and when the said Feu was granted the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward and for securing the Feuer having bought the saids Lands as optima maxima at alse high a price as if the Lands had holden otherwayes that he and his Successors should not be Lyable to the Feu-duty during the Ward the Disponer was obliged to Infeft the Feuer in an Annualrent out of other Lands equivalent to the Feu-duty suspending always the effect of the said Right except during the Ward Quaeritur 1mo If the said general Discharge with an obligement to grant particular Discharges when required will militate against singular Successors being in rem Answer Cogitandum But it is thought that it will not unless the same were by way of Provision in the Charter and Seasin When Ward Lands were Feued which did hold of the King before the Year 1633. The Feuer during the Ward was only Lyable to the Feu-duty by the old Act of Parliament allowing the Feuing of such Lands but there is no mention of the Marriage in the said Act of Parliament Quaeritur therefore Whether the Marriage of the Disponer and his Successors will affect such Feues It is Answered That it is thought not seing the setting of Feus being allowed it appears that Feuers should be only Lyable to the Feu-duty The Feuer having ever possest since the granting of the said Right mentioned in the Querie abovewritten except one but not being Infeft upon the said obligement to Infeft in an Annualrent for relief of the Feu-duty Quaeritur If the Feuer should pursue upon the said obligement if it may be obtruded that it is prescribed Ratio Dubitandi That the said obligement is a part of the Feuers Right and the Feuer has been in possession by vertue of his Right all the time and if the Feuer had not been Infeft upon the Feu-Charter and had been in possession by the space of Fourty Years and after the expireing of the same should pursue the Disponer and his Representatives to grant a new Charter with a Precept to Infeft it could not be pretended that the said Right was prescribed If Lands holden Ward of the King be Feued after the Year 1633. and the King should question the said Feu as null being contrar to the Act of Parliament Quaeritur If Prescription may be alledged and obtruded against the King Ratio Dubitandi That the Right is null ab initio and cannot be a warrand and ground of Prescription Et quod nullum est nullum sortitur Juris effectum A Vassal of Ward Lands holden of the King having Feued the same conform to the Act of Parliament warranting such Feus Quaritur If the Vassal be Forefault whether such Feus will fall under the Forefaulture if they be not confirmed Or if the Act of Parliament warranting such Feus be equivalent to a confirmation Answer It is thought the King for himself and his Successors by the said Act did consent to all Feus that are to be granted by vertue thereof So that the same is equivalent to a Confirmation Marques of Huntlie Taxt Ward A Gift being granted of Wards simple or Taxt falling within a certain time Quaeritur if the Donator will have Right to the Taxt Ward for Terms thereafter Answer He will have Right to the same if the Taxt Ward has fallen within the said time as the whole time of the Ward seing Ward is to be considered as Jus integrum and Dies cedit when ever it falls albeit non venit Warrandice A Bond being Assigned with absolute Warrandice Quaeritur What is the import of the said Warrandice And if the Cedent should be Lyable if the Debitor be or should become Insolvent Answer It will import only that the Debt is true and due by a valide Bond but not that the Cedent should be obliged to warrand the condition of the Debitor the Law being express to that purpose that he should warrand deberi but not Debitorem locupletum esse As was found in the case of Mr. Robert Barclay Quid Juris If the Warrandice be in these Terms that the Debitor is Locuples and he be truely so for the time but he becomes Insolvent Cogitandum Infeftment of Warrandice IF an Infeftment of Warrandice being only base will be construed to be publick by Possession by reason of the Possession of the Principal Lands Dunglas Waste WAste being committed by a Liferenter or Wadsetter and the Heretor deceasing or disponing the Lands whether will the Action for the same be competent to the Heir of the Heretor or to his Executors or Singular Successors Answer It is thought it will belong to the Heir or Singular Successor being Actio in Rem And so it is by the English Law Witnesses Remitted THE necessary Qualification of a Witness being Honesty and Integrity which though presumed in all Persons yet cannot be thought to have been in these who by sentence on their own Confession are evidently Criminosi and guilty of the highest Crimes It would seem that a Remission may Free as to punishment and may Repone as to all other capacities and as to the Kings own Interest But not as to that which in behalf of the People requires Integrity And the King by a Remission may free a Pain but not a Guilt and cannot repone to Innocency Witnesses in case of Treason THE Law of the Majesty and the Statutes of King William Chap. 11th Of these who are Infamous and the Statutes of Robert the 1st Cap. 34. of these who are repelled from Testimony are clear that Socii Criminis cannot be Witnesses and convicti redempti cannot be Witnesses Quaeritur therefore if a Person convict of Treason and Remitted that he may be Witness against others can be Witness Especially that Law bearing That conducti prece vel pretio cannot be Witnesses and there can be no greater pretium than a Mans Life Skin for Skin c. VVomen VVitnesses QVaeritur If Women Witnesses may be admitted in the case of Divorce to prove Adultery Answer This Question is under debate upon Advocation from the Commissars of Edinburgh having admitted the same And that they should not be admitted 1mo That by our Law Cap. 34. Stat. 2d Ro. 1st Women are
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
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
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
jure Mariti jus Creditorum quod subit in consequentiam ut accessorium corruit nec subsistit magis quam accidens sine subjecto Broomhall contra Darsie Julii 7. 1678. Altarage SOme Lands being Founded by a Burges of Dumfermling to an Altar in the Church of Dumfermling for Maintainance of a Chaplain at Saint Marys Altar there And it being provided by the Foundation that the Founder and his Heirs Male should Present the Chaplain The said Lands being after Fewed and since Disponed Quaritur How shall the purchaser be Infeft This case is not under the Act of Parliament anent Laick Patronages The case there being of Patronages whereof there is Infeftment holden of the King whereas the Patronage in Question is not by Infeftment but provision as said is It is thought that the Chaplain is Superiour And if there be none a Chaplain should be presented Caribber Quaeritur The Patronage being to the Heirs Male of the Founder and if they do not present within _____ Days The Dean of Gild of that Town should present Whether the Heir-Male may Dispone the Patronage Ratio dubitandi The Provision in the Foundation is not in favours of Assigneys and the Founder had confidence only in his Heirs And such an Interest being Religious and provided to a Family with the said substitution is not in commercio Randifurd Annexation to a Barony in another Shire WHat is the effect and import of Annexation of Lands lying within one Shire to a Barony lying within another Whether it be Annexation only that one Seasin may be sufficient for all the Lands though in several Shires Or that Inhibitions and other Diligence should be used at the Mercat-cross where the Barony lyeth Annualrent AN whole Barony of Land being affected with an Annualrent and being thereafter Disponed in several parcels to diverse persons If one of the saids Purchasers should be distressed for the whole Annualrent May he have recourse against the others for their proportional parts they being in rem correi debendi A Person being Infeft in an Annualrent irredeemably so that neither the Heretor may Redeem nor the Annualtenter may require his Money and the Annualrenter not being Creditor but upon the matter Emptor annui reditus Quaeritur Whether such Annualrents will be lyable to subsequent Laws restricting and lessening Annualrents Ratio dubitandi These Laws do militate only in the case of Mutuum which is not here There being neither Sors nor Vsura nor Debitum as to the principal Sum And though such Annualrents be constitute with a respect to the Sum that was payed and the Annualrents thereof current for the time That does not alter the case seing the property of Lands is only bought with the like consideration And the Annualrents of Money might have been heightned and the Annualrenter wants the benefite competent to him in the case of mutuum viz. In the case of Money lent out for Annualrent he might uplift the Sum and employ it more profitably than for a small Annualrent An Annualrent being Disponed to be uplifted out of Lands and Teinds and Infeftment following thereupon Quaeritur What will be the Effect of the said Right as to the Teind seing the Ground cannot be Poinded for the same these not being Fundus Answer The Right of the Teinds may be apprysed and a personal Action will be competent against the Heritor of the Teinds during his occupation An Annualrent being disponed to be by Infeftment out of several Lands lying discontigué Quaeritur If the Disponer may unite the same so that one Infeftment taken at one of the Lands may be sufficient for the others Annualrent for Damnage Quaer IF the Defender should be lyable for Annualrent of the price in so far as it is more nor the Worth of the Lands It is thought Not because the Rate is not certain and the Defender may get a Buyer at the same price And that the Defender was in bona fide to contract with a Pupil so authorized and if he have prejudice he should have recourse against his Tutors Representatives And Annualrent is not due for Damnage and Interest until it be declared Tweeddale contra Drumelziar vide Reduction upon Minority litera M. Right of Annualrent A Person having disponed Lands with a Procuratory of Resignation and Infeftment to the Buyer of the Lands and for security to himself of a part of the Price for an Infeftment of Annualrent redeemable upon payment of the Sum and with a Clause likeways that the Infeftment shall expire Quaeritur 1. If there be prejudice to the Buyer that his Right should be so affected being his Ground-right Answer It is thought there is none Seing upon payment if the Party desire There may be a Renunciation upon the back of both Charter and Seasin relating to another of the same Date to the effect it may be registrate 2. Quaeritur If the said Right being to be holden of the Superior may be extinguished without Resignation Answer It being only a redeemable Right after Redemption in strictness of Form cannot be resigned because it is loused And formerly in Wadsets of Property the Superior upon the Redemption did grant Precepts and a Right of Annualrent cannot be resigned for a new Infeftment given to the Heretors Superior that being inconsistent with the Property in one Person And therefore a Decreet of Redemption with the Clause foresaid Resolutive in case of Redemption relating to both doth sufficiently extinguish it And if there should be a Resignation in the Superiors hands it should not be in favorem for the Reason foresaid or ad Remanentiam But to the effect the Annualrent might be renounced and consolidate with the Property with the Superiors consent Relicts Annuity WHen a Husband is obliged and his Heirs to pay an Annuity to his Wife in Liferent If other Creditors be about to do Diligence and Comprise after his Death Quaeritur If the Relict may not pursue the Heir to secure her and for that effect to grant Infeftment of Annualrent and upon a Decreet Adjudge an Annualrent upon that Ground Quando aliquid conceditur aut disponitur conceduntur omnia sine quibus non potest explicari And the Obligement for the Annuity will be otherways Void Annus Vtilis ANnus utilis Duplex est 1. Ratione initii ut initium sit utile postmodum Dies continui 2. Ratione omnium dierum ut actor habeat potestatem agendi reus respondendi Dies sint judiciales Thes Besold in Lit. I. 51. vid. Injuria Appellatio APpellatio non permittitur in foro Saxoniae sed in ejus locum successit Leuteratio ad eum finem introducta coram eodem Judice ut gravamina errore forte litigantium vel negligentia Judicis illata brevi manu reparentur sed hujus rei abusus perspicuus est Vide Leuteratio Besold Thes Litera l. 53. Appellatio a Camera Imperiali APud Germanos cum sit ultimum Judicium Camera ab ea
non appellatur ne tamen sua potestate abutatur constitutum est judicium Revisorium ad quod ij qui per iniquitatem aut negligentiam Assessorum laesos se existimarent provocare Revisionem petere possent per Commissarios Imperatoris Statuum Imperii ad id deputatos adversus sententiam sine dolo non tamen sine errore aut culpa latam Fritschii Exercitat juris publici pars 2. exercit 1. n. 88. sequen Revisio habet effectum Executionis suspensivum 91. Ibid. Judicium Camerale cum non a solo Imperatore sed a Statibus suam acceperit authoritatem tum Imperatoem tum Status repraesentat Ibid. n. 83. Camerae Praesidem Assessores initio constituebat Imperator sed Ordinibus consentientibus id deinceps mutatum ut Assessores ab Ordinibus praesentarentur Ibidem Imperator causas in Camera caeptas avocare non potest quia per modum Contractus in ordinationem Camerae consensit ideo ad ejus observantiam de jure tenetur Ibid. n. 84. De Appellatione a Praefecto Praetorio aliorum Judicum Sententiis LIcet ab iis ob eorum Excellentiam non liceat provocare iis tamen qui Laesos se affirmant supplicandi Licentia permittitur remedium datur per Supplicationem ex gratia non per viam Restitutionis ex Justitia praesertim cum sententia lata est contra Jus Litigatoris Thes Besoldi p. 557. litera L. Appellatio a Vicario AVicario ad eum cujus est Vicarius non appellatur cum utriusque idem sit Tribunal L. Romana 3. de appellationibus sexto Decret L. 1. 2. Cod. De Officio ejus cujus vice alter judicat Sigismund Scaccia de Appellationibus q. 8. n. 61. Approbatio 1mo Nulla Exceptio aut allegatio in foro magis trita aut frequentior est illâ de Approbatione aut ut loquimur de Homologatione quae illâ regulâ niti videtur quod approbo non reprobo Sed cum omnis definitio in jure sit periculosa ista ut omnis materia Brocardica variis substringatur limitationibus aut enim Approbatio juris alicujus celebratur expressâ ratificatione id agitur ut approbetur eo casu reprobare quod approbavit nulli licet nec honestum est aut aliud agitur sed ex actu colligitur infertur approbatio eo casu dispiciendum quid actum actus agentium ultra eorum mentem intentionem haud operantur v. g. Emi praedium ratus illud ad venditorem pertinere ut optimum maximum nec Servituti aut Reversioni ut loquimur seu Retractui obnoxium emersit adversarius Sempronius asserens servitutem aut jus praedii Reluendi sibi competere ejus vel potentiam veritus vel alia ratione impulsus cum eo transegi isto jure vel mihi cesso vel acceptilato sed Titius idem jus servitutis aut Retractus ab eodem authore adeptus sed potius quia anterius Si ex eo contra me ageret mihi contra jus Retractus aut servitutis excipienti haud obtrudi posset me jus homologasse approbasse eo quod cessionem aut acceptilationem ejus stipulatus fui ea enim transactione id tantum agebatur ut litis ansâ praecisâ conditio mea melior non deterior foret ut mihi consulam acquirendo jus si quod erat penes Sempronium non vero ut jus aliquod a me alienem 2do Eadem ratione si juris mei ignarus praedium meum conduxi aut post locationem Dominium ejus nactus domini forte haeres sum in possessorio locatore de mercede agente de jure meo exceptio haud admittenda est nemo enim sibi causam possessionis mutare potest nec minus possessione reddita jus meum integrum illibatum superest nec in petitorio aut declaratorio obest conductio aut exceptio Quod approbo non reprobo conducendo siquidem praedium quod ignarus meum esse alienum rebar locantis id mihi erat propositi ut jus in eo consequar non ut jus in alium transferam consensui sine quo nec est nec esse potest alienatio nil magis contrarium quam error Arrestment IF Arrestment be Pignus Praetorium and doth so affect that in whatsoever hands the thing arrested cometh it will be lyable thereto Or if it be only a Diligence and upon the matter of the nature of Inhibition in mobilibus so that the Debitor dying or the subject that is arrested being Poinded or Comprysed the Arrestment will be ineffectual If the Goods in the Hands of the Debitor upon Arrestment may habili modo be craved to be forthcoming Or if habilis modus of all Goods but Money be to Poind or Apprise the Propriety of Corpora being only transmitted per Traditionem If Arrestment upon a registrate Bond may be loused being before the Term of Payment Whether where there is nothing due by a Person in whose hands Arrestment is made the time of the Arrestment the same will affect a supervenient Debt If Arrestment die with the Debitor or doth affect after his Decease If a Bond for lousing Arrestment be void through the Debitors Decease If at least an Arrestment upon a Decreet be of an other nature than that upon a Dependence being in effect Pignus Praetorium and Execution pro tanto or if it should be at the most like a Denounciation whereupon Comprising has not followed in the Defuncts time which therefore is void Albeit an Arrestment doth not import a Right of Hypotheck and that notwithstanding an other Creditor may poind Quaeritur If at least it should have that Effect That the Person in whose hands the Arrestment is made cannot pay the Debitor in prejudice of the Arrester and that as he cannot pay the Debitor so after his decease he cannot pay his Heir nor Executor being eadem Persona Executors being in Competition upon Arrestment to make forth-coming Whether they should come in all pari passu notwithstanding some be before and some after as in the Case of Comprisings being both at one time though the Denounciation be at several times Quaeritur If an Arrestment doth affect Debts due by the Person in whose hands the Arrestment is made contracted after the Arrestment Ratio Dubitandi Inhibition doth affect Lands acquired thereafter and Arrestment as to such things as are the Subject of Arrestment is of the nature of Inhibitions and there is eadem ratio as to the Interest of the Creditor Arrestment being made of a Sum due by a moveable Bond bearing Annualrent and of all profits due to the Debitor by the said Bond. Quaeritur Whether the said Arrestment should be effectual not only for the Annualrents already run but these that should accrue thereafter The same Question may be as to duties of Lands Ratio Dubitandi Quod non est aut nullum est nullum sortitur
removed and a solid course taken for obviating the like Abuses thereafter that places be not venal but proposed and disposed as rewards of Vertue to able and deserving Men 3tio The Exorbitancy of Fees and Quotts may be Regulated by taking course anent the presentation to settled places that honest and ingenious Men be presented that a Competency of settled and constant Fees be alotted to encourage honest and able Men to pretend to these places and to enable themselves for them and that they may live creditably and honestly in them and Quotts may be abridged and it may be provided that small Testaments may be free of Quot And the Quots of great Testaments may be limited not to exceed a certain Sum which the Estates shall think reasonable to be the highest Quot The Quot Silver which shall be thought fit to be taken may be employed the Commissaries being satisfied of their Fees to pious uses Consolidation A Person having Right by Assignation to a comprysing of Lands holden of himself whether eo ipso that he has the foresaid Right will the Property consolidate with the Superiority Seing a Comprysing is equivalent to a Disposition and Resignation thereupon And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation and to the said Resignation It seems that in that case there is Consolidation In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him And because he cannot Infeft himself the Law doth introduce Consolidation Ratio Dubitandi is That Consolidation is upon the matter a Seasin of the Property And a Seasin being facti cannot be without some deed of the Person in whose favours the Consolidation is to be made Declaring that he accepts a Right to the effect foresaid If it be not fit in such cases that the Superior should before a Notar and Witnesses Declare that seing he has both a Right to the Property and Superiority in his Person It is his will and intention that the Property should be consolidate with the Superiority And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam When a Person Infeft in the Property of Lands acquires and is Infeft in the Superiority Quaeritur If eo ipso there be a Consolidation of both Rights Item if the Superior succeed as Heir to the Right of the Property Quaeritur If in that case there be a Consolidation so that Dominium directum trahit ad se utile Seing the Superior could not Infeft himself and by his purchasing of the Property he enters to the Right thereof and so the Property is consolidate fictione juris in the same manner as if he had been Infeft If vice versâ The Proprietar acquire the Superiority If eo casu there be a Consolidation of both Rights Answer It is thought not And that Dominium utile cannot draw to it directum without Infeftment by the Superior of the Dominium directum If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer be thereafter Infeft as Heir to his Father in the Superiority of the said Lands which belonged to his Father and his Heirs Male Quaeritur Whether there will be a Confusion and Consolidation of the Property and Superiority It is Answered During his Lifetime there will be a kind of Consolidation seeing he cannot be Superiour to himself But it will cease by his Death so that the Superiority will belong to his Heirs Male and the Property to his Heirs whatsomever If he intends that there should be a Consolidation what course is to be taken to that purpose Answer If as in the case foresaid he was Infeft first in the Property and then in the Superiority he must dispone the Property to a Confident And the Confident being Infeft must resign ad Remanentiam to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors If a Superior should succeed in the right of the Property Quaeritur If there be a confusion of both Rights in his Person Answer It is thought though they may appear to be a Consolidation dureing his Lifetime they are nevertheless distinct Seing the right of the Superiority may be to Heirs Male and the Property to Heirs whatsomever And the said Heirs may succeed Respectivè If the said Superiour being Infeft in the Right of the Superiority succeed thereafter in the Right of the Property what way shall he be Infeft therein seing he cannot Infeft himself Answer It is thought that it is not inconsistent that the Superior may give Precept to give Seasin to an Actorney in his name and for his use If the said Superior intend that the Property should be consolidate with the Superiority what way shall it be done Answer He may direct the said Precept in these Terms for Infefting him And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority The Precept may be in these Terms to give Seasin to the effect the Property may be consolidate with the Superiority To be holden both of his Superior in all time coming in the same manner as if they had never been severed If a Precept may not be obtained in subsidium out of the Chancery for Infefting the said Person in the property to be holden of himself seing he cannot Infeft himself Answer It is thought that a course may be taken upon a Bill to the Lords ordaining the Director to the Chancery to direct a Precept upon the reason foresaid Decreets contra Consortes A Decreet of Reduction Ex capite interdictionis being obtained in foro and the Wife being Liferentrix craving to be reponed because Competent and omitted could not be alledged against her being sub potestate Mariti Quaeritur If she prevail may the Husband crave the benefite of her Decreet Ratio Dubitandi Upon pretence that it is found that the Decreet against him was unjust upon the matter And it cannot be just as to her and unjust as to him This Question may occur in many cases As that of two Heirs portioners one being Major and another Minor And after the Decreet against both The Minor being Reponed and prevailing And of a Decreet against a principal having proponed a Defence of payment and having succumbed in probation And thereafter the Cautioner being pursued and upon probation of the same Defence being Assoilied Corporations QVid juris as to Crafts and other Incorporations and as to Bishops and other single Incorporations if in any case they may oblige themselves and their successors Creditors of the Defunct IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir though they do
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
Friends should accordingly name two Persons would the Right be valid Ratio Dubitandi 1. Mandatum expirat morte mandantis And if he could not dispone himself on Death-bed much less could he impower another Person to dispone after his Decease 2. Paria sunt indebito tempore fieri in tempus indebitum conferri 3. A Deed cannot be said to be a perfect Deed inter vivos unless it were consummate in substantialibus and the Person Cui is de substantia 4. No Power can be given by a Person who has no Right himself but as Procurator or Commissioner and such Powers do expire with the Granter 5. There can no Right validly be given incertae personae or ex alieno arbitrio in futuro 6. The Defunct could not give Power to the said Friends to dispose of his Personal Estate after his Decease and à pari or majori he could not give such a Power as to his Heretable Estate Mr. John Bayne of Pitcairly Disposition IF a Person get a Right and Disposition omnium Bonorum Whether will he be lyable to the Debt of the Disponer Actio ad Distractum EX Contractu non agitur ad Distractum sed ad implementum Contractus Transactio non aliter annullantur ex defectu Implementi quam si praecesserit monitio ad implendum deinceps culpa implere Debentis Hering de Molend Quaest 11. N. 132. 133. Division of the Duties of Lands betwixt Buyer and Seller BY the ordinary Custom when Lands are sold If it be a Whitsundays Bargain the whole years Duty is assigned If it be a Martimass-Bargain only the half year Quaeritur If they be not assigned Quid Juris as to the said Duties Answer It is thought the Buyer will be in the Case as we have said of a Compryser But the Question will be if the Bargain be made after Martimass and before Candlemass the ordinar Term of Payment of Victual And then it is thought that the Buyer should be in the same case as if the Bargain had been made precisely at Martimass if the price be then payed or in condition to be payed with the Annualrent from Martimass Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass Donatio inter Virum Vxorem A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands and making Faith not to question it Quaeritur If she may so far revock a Donation as to her Husband that she may crave the equivalent Donatio inter Virum Vxorem being ipso jure Null But so that morte confirmatur Quaeritur If a posterior Creditor of the Husbands should Comprise Lands given to the Wife during the Marriage before the Husbands Death will his Death confirm the deed in prejudice of the Creditor The Comprysing being medium impedimentum If at least the Legal will belong to the Wife The Husband not Revocking If the Husband decease without Revocking Quaeritur If the Wife will have Action against the Heir upon that ground that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond Lands being Disponed by a Husband to his Wife and thereafter he having Disponed the same to another person in Lecto aegritudinis Quaeritur If his Heir may question the Right in Lecto Ratio Dubitandi It is not made in his prejudice but of his Wife And the Revocation is only in favours of the Receiver of the Disposition A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife Quaeritur If eo ipso he has Revocked Tacité the said Donation Ratio Dubitandi The Donatio inter virum uxorem is Null and morte tantum confirmatur And before it became valid the said impediment interveened And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way his Silence and not Revocking is upon the matter fraudulent and in prejudice of the Creditor It is thought That it is to be considered if the Debitor or his Heir have no other Estate out of which the Creditor may be satisfied In that case the Creditor may have recourse against the Lands Disponed to the Wife If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted Ratio Dubitandi That if the contracting the Debt after such Donations import Revocation it ought to be only in favours of the Creditor and not of the Heir who ought to be in no better case and the Wife's Action against the Heir may be upon that ground That out of the Estate belonging to her unquestionably as to the Heir the Debt whereto the Heir is Lyable is satisfied A Woman having made a Disposition to a third person to the behoof of her Husband and having ratified and made Faith before a Judge Quaeritur If she may question the said Deed as being Donatio inter Virum Vxorem notwithstanding her Oath Answer It is thought she may And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis otherwise eâdem facilitate that a Wife is induced to give she may be induced to Swear and the Law should be Elusory And such Oaths ought to be understood only that they are not compelled and that they shall not question such Deeds upon that head But not in relation to any other Ground whereby they may be questioned As v. g. Minority and that the Wife has Curators not consenting And that the Husband if she has no other is Curator and cannot Authorise her to any Deed in rem suam And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands Donatio mortis Causa THere being a Donation inter virum uxorem Quaeritur The Donator Deceasing and the Donant Surviving and not Revocking whether will the Gift be Valid Ratio Dubitandi Such Donations aequiparantur Legatis being always Revocable And Legatars Deceasing before the Testator their Legacies are void Donatio non acceptata IF a Donation be made but not accepted Quaeritur If a Creditor may Compryse the same and accept Vide Legacy quest 4. Donators upon Recognition and Forefaulture AFter Lands holden of the King had fallen under Recognition they fell also under Forefaulture and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition and thereafter another Gift was given upon the Forefaulture It not being known by the King or his Officers the time of the first Gift that the person Forefaulted had committed Treason Quaeritur Which of the Donators should be preferred Ratio Dubitandi That Recognition is but a Casuality And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure And all Casualities seem to be
thereupon the half of the Estate To see the Decreet Jus Facultatis ATtendendum an quis aliquid faciat jure facultatis an jure servitutis Facultas enim non minus aliis quam nobis patet quia usus qui alii magis ex occasione quam jure conting it Servitus non est nec in eo temporis Diuturnitas quidquam prodest nisi accesserit prohibitio praescribentis patientia ejus contra quem praescribitur Jus Fluviat p. 756. N. 71. sequent Personal Faculty A Person giving a qualified Right reserving Liferent and a Power to dispone Quaeritur If that Faculty may be comprised as a Personal Reversion Quae Facultatis sint ALiqua Dicuntur esse facultatis quorum Libertas a Jure publico permissa est quae non pariunt jus deducibile in Judicium hoc casu nec nos contra alios praescribimus nec alii contra nos Exemplum est in Leg. viam 2da de via publica Aliud Exemplum est in facultate privata quae nullam antecedentem habet causam obligandi ut si Rusticus sua sponte nulla praecedente causa per multos annos Domino certis temporibus capones attulit ex hoc actu merae facultatis nulla oritur Domino actio Quomodo intelligendum Facultati non praescribi ALiqua dicuntur esse Facultatis ad acquirendum novum Jus vel novam actionem vel etiam ad eam Conservandam atque ita pariunt Jus deducibile in judicium Et hoc jus licet sit in libera potestate acquirere volentis non tamen est in potestate illius contra quem acquiritur vel conservatur ut recusare posset Sic adire haereditatem est merae facultatis tamen tollitur praescribitur spatio 30 annorum ergo juri offerendi reluendi praescribitur Hering de Molend quaest 21. N. 17. sequen Jus publicum tribuit cuivis de Populo ut uni ex multis nec privative ad alium etsi ad singulos inde aliquid commodi perveniat Inde illud quod dicere solent Facultati non Praescribi Dicitur de his quae à natura aut publico Jure tribuuntur itaque quocunque tempore nemo praescribit ut qua ierit in publico nullus alius commeet etsi nunquam ea commearit Ea quae de tali facultate dicta sunt non recte Traducuntur ad ea quae proprii privati cujusque Juris sunt id enim Jus est quod ad privatum quemque pertinet privativé ita ut non ad alium Omni siquidem Juri aut facultati quae competit privato cuiquam privativé potest praescribi Idem Ibid N. 20. Faculty reserved to dispone IT being ordinary that a power is reserved by these who Dispone Lands especially to their Friends to Redeem or Dispone or Burden at any time dureing their Lifetimes Quaeritur Whether Lifetimes should be understood civily during their Liege Poustie Item Quaeritur If the Receiver of the Disposition be Dead and the Lands in Non-entry whether the Disponer may notwithstanding Dispone and resign by vertue of the said Power Ratio Dubitandi The said Faculty is upon the matter a Heretable Commission and Procuratory which cannot be Execute post mortem mandantis and there is no person that has the Right Established in his person so that it may be resigned Item If the Lands be in Non-entry and Ward will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior Ratio Dubitandi The Defunct by whose Decease they accrue was the Superiors Vassal And though the Disponer has the same power yet he should have used it debito tempore while the Vassal was on Life and before the pursuer had jus quaesitum On the other part the said power is of the nature of a Regress so that quocunque tempore as in the case of regress Re-entry may be desired by vertue of the said Faculty A Charter being to be granted to a person conform to the said power That Clause Quaequidem pertinuerunt what way it is to be conceaved and if mention should not be made of the person who is Infeft for the present though he be not the person to whom the Right was Disponed with the said Power But either an Heir or singular Successor If the Faculty to Dispone be not upon the matter a Reversion materially and as to the effect of the same so that the person having the same may Dispone albeit he has not jus in re And albeit the Heretor be either Dead or Forfaulted As an order may be used against an Appearand Heir or against the King or his Donator in the case of Forfaulture or ultimus Haeres A Person who had the Faculty foresaid having by vertue thereof Disponed but deceasing before Resignation Quaeritur What way the Disposition shall be made effectual seing the Faculty was personal to himself Fee WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent and to the Bairns in Fee Which FailÈieing to the Father and his Heirs Quaeritur Before there be Children where is the Fee And if it be not fit to take it to the Father to the use and behoof of the Children which FailÈieing to himself and his Heirs When it is intended that by Contract of Marriage the Parents should be only Liferenters and that certain Sums should be provided to the Children so that they do not represent them Quaeritur What way the Fee can be provided to the Children that are not in being Answer The Father may be infeft in Liferent for himself and in Fee for the use and behoof of his Eldest Son and his Heirs Which Fee is to be to the Father and his Heirs to the use foresaid And they are to be obliged upon the Existence of a Son to denude in Favours of him and his Heirs By Contract of Marriage betwixt Knockdaw Sir John Kennedy and Gilbert Kennedy of Girvanmayns The said Sir John having married the said Gilbert's Daughter The said Gilbert's Lands and Estate are disponed to the said Sir John and his said Spouse and the Heirs betwixt them which failÈieing to such of the said Gilbert's other Daughters as he should at any time appoint which failÈieing to the said Sir John's Heirs and Assigneys whatsomever and now the said Sir John being deceased and having a Son of the Marriage Quaeritur Whether the Fee did belong to him so that his Son may be served Heir to him in the Estate It is Answered That in the case of the Duke and Dutchess of Monmouth The Conception of the TailÈie not being unlike it was thought the Dutchess was Fiar albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife and the Heirs of Marriage which
FailÈieing either to the Husbands Heirs or Wifes Heirs And in the case foresaid where after the Heirs of the Marriage there are diverse substitutions in favours of the Wife 's other Heirs and after all in favours of the Husbands Heirs In the first if the Wife's Heirs be only substitute FailÈieing Heirs of the Marriage the Husband is understood to be Fiar Because as it is the essence of a Fee to have power to Dispone and if the Fiar do not Dispone to transmit to the Fiars Heirs and to be represented by them And in dubio cujus haeredibus maxime prospicitur That person is thought to be Fiar But in the second case there being diverse degrees of Substitutions and all in favours of the Wife and her Heirs before her Husbands Heirs The Wife is thought to be Fiar And upon the FailÈeure of all her Relations the Husbands Heirs in the last place are Heirs of provision to her And yet in the said case of Girvanmains It is thought that the Husband is Fiar there being these specialities in that case 1mo The said Estate is Disponed to the Husband and his Spouse the longest Liver as said is and their Heirs of the Marriage and there is no Liferent settled on the Husband whereas there is a Liferent of a part of the Lands given to his Wife in satisfaction of what might fall to her either of her Fathers Estate or of her Husbands 2do There is a provision that if there should be no Children of the Marriage to succeed to that Estate the Husband should be obliged in that case he and his Heirs to denude themselves upon payment of a certain Sum of Money and he could not denude himself unless he were Fiar So that it was intended that the Husband should be Fiar but with the foresaid Provision to denude in the case foresaid and to be restricted to a Tocher For which and other Reasons arising upon the Contract The Antecedentia and Consequentia being considered It is thought that the Son should be Heir to his Father as Fiar A Bond being granted to a Man and his Wife and their Heirs Quaeritur What Right the Wife will have to the Sum Ratio Dubitandi that there being no mention that the Sum should be due to the longest Liver and the Heirs of the longest Liver but to them both and their Heirs It appears that the Heirs should be understood the Husbands Heirs as Personae digniores Answer It is thought that seing there is an joint Right to the Husband and the Wife and it is the custome of Persons of their Quality being mean Country Persons that the longest liver should enjoy all The Wife indubie should enjoy the haill in Liferent and should have the Fee of the half De Feodo Pecuniae Nominum PEcuniae Nominum nec proprie Ususfructus nec Feodum est ususfructus enim definitur jus utendi fruendi salvâ rerum substantia pecunia autem sive in specie sive in nominibus est res fluxa Et si in specie sit facile diffluit usu consumitur Nomina autem etsi initio idonea debitoribus decoquentibus inania sunt Quemadmodum vero ob utilitatem receptum est ut pecuniae sit quasi usus fructus ita est quasi feodum istud enim proprie loquendo est tantum in rebus soli stabilibus feudis tantum non vero allodialibus ita dictis quod nullo laudato recognito alio dominio ad proprietarium pertinent pleno integro jure nec libato diviso in Dominium directum utile Licet autem apud alias Gentes praedia quaedam allodialia sint nobis omnia sunt feudalia Et Feodum quidem in feudis de proprietate dominio dicitur prout distinguitur ab usu fructu aliis quae circa feuda versantur juribus Per Metaphoram tamen Feodum transfertur ad pecunias nomina ita ut is in Feodo esse dicatur cui jus summum proprietatis competit plaerumque vero evenit sive seculi vitio in nova commenta prurientis sive Notariorum Incuria aut imperitia ut Chirographorum stylus a primaeva simplicitate deflectat sic haud raro nec immerito dubitatur penes quos sit pecuniae Nominum Feodum Quaestio Prima SI igitur Sempronius Pater Pecuniam crediderit Chirographo stipulatus sit eam usuras sibi solvi si superstes sit Eo autem per obitum deficiente Titio filio suo Titii haeredibus quibus dederit seu assignatis Ita tamen ut Sempronio liceat de pecunia Nomine disponere Titio haeredibus ejus inconsultis nec consentientibus Quaeritur In ista facti specie ad quem nominis istius Feodum pertineat Et videri possit Feodum ad Titium filium pertinere cum nulla sit mentio Sempronij haeredum Et Feodi ea sit natura ut ad haeredem transeat qui in jure eadem persona censetur Dicendum tamen Sempronium in Feodo esse penes Titium vero ejus haeredes spem jus successionis Nam quae Feodi proprietatis vel essentialia vel naturalia sunt ut sciêª Dominus de re sua disponere possit ut ea ad haeredes transeat ea Sempronio competunt potestas enim disponendi etiam non expressa inesset Titius Sempronio substitutus in jus ejus succedit pro haerede habetur provisionis saltem ut loquimur idque ex eo elucescit quod si accessisset etiam hypotheca sasina terris pro Pecunia in hypothecam datis iâsdem conceptis verbis Sempronio sciêª eo deficiente Titio filio ejus haeredibus assignatis Titius eo casu extra omnem quaestionis aleam haeres foret ubi autem eadem sunt verba eadem ratio idem jus est esse debet Quaest 2da IN ista facti specie supra memorata Quaeritur etiam an Sempronius de isto nomine disponere possit nedum inter vivos sed Testamento aut codicillis eo legato cum debitum Chirographarium mobile sit Respondendum videtur Sempronium eo ipso quod tam haeredibus quam executoribus praeteritis Titium elegit substÃtuit sibi instar haeredis provisionis interciso ordinario succedendi ordine quasi Tallia Titium in ea re haeredem esse voluit Voluisse etiam nomen esse haereditarium de quo moribus nostris nisi inter vivos non licet disponere nec de ea re est Testamenti factio Nec ad haeredem institutum in mobilibus seu executorem nominatum pertinet quod ab intestato ad Executorem dativum non pertineret Quaest. 3tia IN ista etiam specie Quaeritur Si Chirographum in actorum codicem seu Regestum sive ut loquimur Registrum referatur vel a Sempronio vel eo mortuo a Titio ut instar sententiae habeatur ex eo sit
Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents The Vassal of a Subject having granted a subaltern Right to be holden base and the same not being confirmed by the mediate Superior Quaeritur Whether the Subvassals Right foresaid will fall under the Forefaulture of his immediat Superior being Forefaulted Answer It is thought that it will fall under the Forefaulture in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him The Subvassal his Property would have fallen under the Forefaulture and there is eadem if not major Ratio in the case of Treason The King being Superior Paramount and the Crime against him being also a Crime against the mediate Superior there being no greater wrong than to be a Traitor to the Superiour Caldwell and Glanderstoun Quaeritur Quid Juris If the mediate Superiour had confirmed the Subvassals Right Quid Juris in the case of Forefalture for Treason And if there be a difference in the case of Forefaulture in Parliament and before the Justices Lands being Comprysed and a signature being past upon the Comprysing but no Infeftment being taken thereupon Quaeritur If the Debitor commit Treason in the interim whether the same will fall under Forefaulture Answer It is thought that it will not seing the Debitor was fully denuded there being no vestige of Right in his person seing he is divested by the Comprysing as if he had resigned and the Superiour had accepted the Resignation Quaeritur Quid Juris If there were only a Comprysing without a Signature And the Question may be more general Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser by any Deed whereupon Recognition or other Forefaulture may follow in favours of the Superiour otherways a Malicious Debitor may of purpose do such a Deed to prejudge his Creditor To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superiour And a Comprysing whereupon nothing has followed Item If the presenting of a Signature on a Comprysing to the Exchequer be equivalent to a Resignation in the Superiours hands and accepting Item Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation If after a Person is Forefaulted an Estate should fall to him as appearand Heir to any person he being yet on Life whether would the same pertain to the King or to the next Heir as if he were Deceased Seing he is nullus being Forefaulted and is not in a Capacity to be Appearand Heir If a Forfaulted person have Children that are ante nati Whether or not will they be prejudged by their Fathers Forfaulture as to any Capacity or Estate belonging to him Whether will they succeed to their Grandfather or any relation upon the Fathers side Seing their Blood is corrupted and they cannot represent their Father being nullus as said is A person having Married an Heretrix and being thereafter Forfaulted Quaeritur If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother 2do If the Mother should not dispone in her oun Lifetime Whether her Estate will fall to the King by the incapacity of the Children being her appeirand Heirs An Heretrix being Wife to a forfaulted person If al 's long as he liveth the King will have right to the Mails and Duties Jure Mariti 2do If she may dispose of her Estate without his Consent seing he is nullus in Law And yet is her Husband the Marriage not being dissolved with the Forefaulture A Father having Disponed his Estate to his Son with Reversion and power either to Redeem or Dispone Quaeritur If the personal faculty may notwithstanding be comprysed during the Fathers Life and may be used even after the Death of the Father There is the same Question as to Forefaulture A Woman being Heretrix of Lands in Scotland and the same being TailÈied to the Heirs of her Body whilk FailÈieing to certain other Heirs with the ordinary Clauses irritant that she and they should not have power to prejudge the TailÈie Quaeritur If her Husband being Forefaulted the Blood be so corrupted that her Children cannot succeed and if their Interest of Succession will fall to the King If a Tack set for an Onerous Cause and for payment of Debt will prejudge the Donator to the Forefaulture The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him if thereafter the Debitor should be Forefaulted and the Creditor reduce the said Right what way shall he be Infeft seing he cannot Compryse or Adjudge the Debitor being Forefaulted There being a Minute of Contract anent the selling of Lands and the Buyer being thereafter Forefaulted Quaeritur If the King or his Donators will have Right to the said Minute in the same manner as the Buyer or if the Seller can raise a Declarator to be free of the Minute Seing albeit where there is a clear Right and Interest belonging to a person Forefaulted the same will pertain to the King yet when a Bargain is only in fieri and there are diverse obligements upon the part of the Forefaulted person the Seller ought not to be in worse case and in place of a Subject have so powerful an Adversary The Earl of Tarras and the Heirs of Walter Riddel The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines but not being Infeft but base before the Forefaulture Quaeritur If by his Forfaulture these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard Answer It Is thought not Seing any Right Cesnock had to the saids Lands was not as the Kings Vassal In which case the subaltern Rights would have fallen and Castlemaines remaining the Kings Vassal Cesnock had only the Right of property holden of Castlemaines And as to Castlemaines Right holden of the King Cesnock had only Jus ad rem by the Contract or Disposition so that thereby the King by the Forefaulture may come to Castlemaines Right and force him to denude himself of the same but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews who did confirm the subaltern Rights granted by the saids Earles Quaeritur Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle notwithstanding the confirmation granted by the Bishops In respect the saids Rights are not confirmed by the King In Answer to the said Querie It is thought that the saids Lands do not fall under the Earles Forefaulture for these Reasons 1mo The Earle of Argyle did Forefault only
what did belong to himself Nam noxa caput sequitur and the saids Lands did not belong to him in Property but only in Superiority And there is a difference betwixt the said case and the case of Lands holden immediatly of the King himself which by the Forefaulture of his Vassal are Forefaulted and does return to the King as he did give them pure and free and without the burden of any other Right granted by the person Forefault but such as the King did consent to and confirmed Whereas in the case in Question The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop who stands still His Majesties Vassal And as his own Right is not prejudged by the said Forefaulture so the Right of the sub-Vassal consented to and confirmed by him is not prejudged by the said Forefaulture 2do Lands holden of the Bishop waird or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle being Disponed by the Earl to be holden of himself will not recognosce by the Earles Deed in Disponing the Superiority or otherways if the Bishop had confirmed the Subvassals Right And there is the same reason in the case of Forefaulture in respect by the common Law when Lands do fall and are confiscat they fall to the immediate Superiour And by our custom in the case of Treason the King has that Priviledge that the Lands which are Forefaultare Confiscat and Forefaulted to him because the Crime is committed against him And therefore the Lands holden of other Superiours do Forefault to the King no otherways than they would belong to other Superiours if the Forefaulture did belong to them In which case the confirmation of the Subaltern Rights by the immediate Superiour of the person Forefaulted would save the Subaltern Rights that they could not fall under Forefaulture 3tio By the Law and Custom of the Kingdom it is lawful Subinfeodare and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio seing res devenit ad aliam causam resoluto Jure dantis resolvitur jus accipientis Yet in the case of confirmation by the Bishop there is a great difference seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it but has another Foundation whereupon it does subsist Viz. The Bishop's own Right and the confirmation granted by the Bishop and specially in this case seing it appears by the confirmation that the same is granted not to gratify the Subvassal and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out but in order to the Bishop's own Interest and Advantage In respect by the confirmation there is reserved to the Bishop beside the Feu-duty payable to Argyle a Feu-duty to himself and his Successors with a Clause irritant if it be not payed And fictione brevis manus the Feuar is in the same case as if the Bishop ab initio by one Charter had Disponed the saids Lands to the Earl of Argyle in Superiority and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter and to the Bishop the said other Deuty In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Property granted by the Bishop himself nor the Bishop of the said Additional Duty 4to By the Acts of Parliament K. Ja. 2d and K. J. 4. anent the setting of Feues and by custom ever since The setting of Fews was so speedful and necessar in order to the policy of the Kingdom That Vassals are not only allowed but invited to set their Lands in Feu which in effect is a general confirmation of all Fews so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same and the said Barony being of a large and vast bounds albeit it was Fewed to the Earl of Argyle yet for the labouring and bringing it in it was necessary to set it in parcells to other Fewers holden of him and the Fews in Question are granted before the Year 1606. A Subvassal holding of a person Forefaulted and his Right not being confirmed either by the Forefaulted persons immediat Superiour or by the King Quaeritur If his Right will fall under the Forefaulture Ratio Dubitandi Licebat infeodare noxa caput sequitur and yet is thought it will fall under the Forefaulture Because resoluto jure dantis c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa A Superiour being Forfaulted and his Vassals Right not being confirmed and so falling Quaeritur If His Majesty should confirm the Vassals Right if that will be habilis modus to secure against a poster or Donator Ratio Dubitandi The Vassals Right being altogether extinct by the Forefaulture there is nothing to be the subject of a confirmation which cannot be of non entis and the Vassal should have obtained a Gift upon the Forefaulture And contra The Vassals Right not being null of it self but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour because he did not consent to the same his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator If after Forefaulture His Majesty having granted a Remission the person Forefaulted is redintegrated to his Estate as if the Forefaulture had not been or if he should take a new Right upon the Forefaulture When a Forefaulted person has Right to succeed to any other person as Heir so that not only his own Estate but what would belong to him if he had entered Heir would fall to the King by his Forefaulture Quaeritur will the King be Lyable to the Debts of the Defunct seing he does not succeed to the Traitor 's own Estate and Patrimony but in haereditatem quae est nomen universitatis both as to the Debita and Bona and there is no reason that the Defuncts Creditors should be prejudged unless they had been in culpa either themselves or their Debitor His Majesty having presented upon Forefaulture a Vassal If that Superiour should be thereafter Forefaulted Quaeritur If the Feu not being confirmed will fall under his Forefaulture Ratio Dubitandi The Feuer is in the same condition with other Subvassals so that if he do not apply for confirmation he is lyable to the same hazard And yet on the other part it may be thought that the reason why Confirmation is necessary is because when Lands return to the King they return as they were given free of all Rights and Burdens but such as the King did
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
could not Dispone the Lands for an Onerous Cause But if the Father had Disponed the Lands provided by the Contract without an Onerous Cause after the Elder Son his Fee or had resigned of purpose to defraud the Heir of the second Marriage the Father would be Lyable de Dolo and the said Deeds reduceible But the Eldest Son being once Liberate by implement would not be Lyable Tweeddale contra DrumelÈior There being Heirs General and Heirs Male and of Provision and Heirs of a second Marriage being provided by their Mothers Contract of Marriage to certain Provisions whereunto they have Right as Heirs of Provision Quaeritur quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion Answer It is thought that they being Heirs upon an Obligement quasi creditores it would appear that they should be Lyable in the last place in subsidium all others being discust In Contracts of Marriage The Husband being for the most part obliged to provide and resign his Estate for Infeftment to himself and the Heirs Male of the Marriage which FailÈieing to his Heirs Male of any other Marriage which FailÈieing the Heirs Female of his own Body the Eldest succeeding without Division Quaeritur If the Husband should resign and take such a Right upon Resignation but thereafter should resign in favours of other Heirs Whether the Heirs of the Marriage may question the said alteration and what way Ratio Dubitandi That an Heir is eadem persona and cannot question the Deed of the Person whom he represents Answer He is not simply Heir but Heir of the Marriage And as to Obligements in his favours he is Creditor 2do It is thought he may pursue a Reduction of the foresaid Deed as being in prejudice of him as Creditor or he may pursue the Heir of Provision by the posterior Right for implement of the said Obligement Quaeritur When by such Provisions there are other Heirs substitute to the Heirs of the Marriage Whether the Husband may alter the Destinations as to the said other Heirs And if he do if they may question the Deed Answer It is thought that the Heirs of the Marriage are only in Obligatione And the other Heirs in destinatione mariti which he may alter A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent and the Heirs Male of the Marriage whilk FailÈieing his Heirs whatsomever And likewayes being obliged that what he should get by his Wife by any Legacy or Right or Assignation in her favours to secure and employ the same to himself and her in Liferent and to the Heirs of the Marriage which FailÈieing to his Heirs whatsomever And he having accordingly resigned and taken Infeftment to him and her and the Heirs foresaid And a Sum of Money having fallen to her and being uplifted and Discharged both by him and his Wife before Inhibition and thereafter there being Inhibition upon the said Contract at the instance of certain Friends at whose instance Execution is appointed to follow These Questions do arise 1mo If notwithstanding the said Inhibition he may Dispone the Lands Answer He may Dispone the same being Fiar And the import of the said Obligement is that the Right of Succession as to the said Lands should be secured to the Heirs of the Marriage in case the Father should decease in the Fee of the same so that he cannot provide them to other Heirs But it is not intended thereby that the Father should not have the Right competent to all Fiars Viz. That they may dispose of the same if their condition requires Quaeritur If he may at least Dispone the same without an Onerous Cause Answer It is thought not seing all Obligements should be understood ut actus valeant operentur And though the Father be Fiar his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage that he cannot fraudulently and to evacuate the said Obligement Dispone without an Onerous Cause If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed Answer It will be effectual as to the Wife But as to the Heirs of the Marriage there may be question Ratio Dubitandi That there being an Obligement it ought to be once fulfilled by employment to him and his Wife and to the Heirs of the Marriage And on the other part seing notwithstanding the Inhibition he might have disposed of the said Sum if it had been employed there is eadem Ratio if it be not employed Seing his Condition may be such that he cannot employ the same If it be not to be considered what truely his Condition is And if it be such that he cannot employ the said Sum without Ruine That he should not be obliged to employ it Dicis Causa to be thereafter uplifted And if a Process may be intented against his Children to hear and see it Found and Declared that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid both as to Lands and Money Seing if the Money were employed he could and might dispose of the same being Fiar And he is not in that Condition to raise the said Sum and employ it Watson of Damhead Heirs Portioners WHen Women succeed as Heirs whatsomever v. g. Three Daughters they succeed as Heirs Portioners without any priviledge of Primogeniture Quaeritur if the Three Daughters succeeding be deceased leaving each of them Sons and Daughters Will the Eldest Son of any of them exclude the rest of the Children and be Sole Heir Portioner to the Grandfather Ratio Dubitandi As Primogeniture is introduced for the preservation of Families which does not militate in successione Foeminea Women being finis caput Familiae There ought to be no respect to the same in the second Degree nepotibus as there is not in primo gradu in filiabus There being utrinque eadem Ratio Where there is a plurality of Heirs Portioners and some of them become Lapsi may the Debt be recovered in solidum from these who are Responsal Cogitandum If a Barony descend to Heirs Portioners will all have Right of a Barony If any Superiorities belong to the Barony will the Eldest only be Superior Heirs of Provision and substitute WHatever belongeth to a Defunct in Fee and Property whether Land or any other Interest the time of his decease cannot be transmitted but to Representatives or these who are instar haeredum and bonorum possessores as in the case of Lands provided to Bairns of the Marriage the Bairns are in effect Heirs of Provision And if Sumes be provided by way of Substitution to another person after the decease of the Creditor the Substitute will be Lyable to the Creditors Debt other Heirs being discussed Heirs of Provision being oftimes Strangers and in re certa Quaeritur will they only be Lyable secundum vires If a Right of
Lands be given to a person without mention of his Heirs And FailÈieing of him by decease to another and the Heirs of his Body Quaeritur Will not the said person who is so substitute be Heir of TailÈie And if it be so in Lands why not so in Bonds granted to persons and FailÈieing of them by decease to other Substitutes Heirs of TailÈie QVaeritur If there be no Heretable Estate belonging to an Heir of Line out of which the Executor may be relieved of heretable Debts Will the Heir of TailÈie be obliged to relieve the Executor of such Debts Ratio Dubitandi Heirs of TailÈie are not properly Heirs but Bonorum possessores and Lyable to Debts only in subsidium whereas the Heirs of Line and Executors are properly Heirs and the Heir of Line if the Executry be great and more considerable than the Heretable Estate may Confer which is not competent to the Heir of TailÈie or Provision The same Question may be betwixt an ultimus haeres and the Executor nominate of a Bastard Legitimate Haereditas being successio in universum Jus Quaeritur Why is an Heir of TailÈie called Hoeres who succeeds only in rem particularem as Fundus Answer He succeeds in omne Jus talliatum non singulari Titulo But as representing the Defunct in ea re et non interest Whether there be any thing in haereditate quando haeres succedit eo jure et majus et minus non variant speciem If after a person has succeeded as Heir of TailÈie to a certain Barony the same be evicted whether will he be Lyable to the Defuncts Debts Ratio Dubitandi semel haeres semper haeres sibi imputet that adit damnosam haereditatem On the other part the Heir having succeeded and having contracted quasi aditione with Creditors intuitu that the said Land was to be his the said quasi Contractus should be considered as ob causam datam non secutam Heirs of Provision and TailÈie who are to succeed only in rem singularem albeit Titulo universali Quaeritur If they will be Lyable to the Defuncts whole Debt though far exceeding the value of the Succession Or if they should be considered as haeredes cum beneficio Inventarii and should be Lyable only secundum vires There being no necessity of an Inventar the subject of their Succession being only as said is res singulares Answer It is thought that if one be served general Heir Male without Relation to a singular Subject as to certain Lands he would be Lyable in solidum But if he be served only special Heir in certain Lands he should be Lyable only secundum vires There being a Right made in favours of a Person as Heir of Provision of a great Estate and in favours of another as likewayes Heir of Provision of an inconsiderable parcel Quaeritur If the person succeeding almost to all the Estate will be considered as Heir of TailÈie and will be Lyable to relieve the other as Heir of Provision When there are two Heirs of TailÈie in diverse Lands of which the Rent is not equal but the one much disproportionable and less than the other Quaeritur If they will be Lyable to the Debts equally or proportionally Quo casu Heirs of TailÈie may be considered as Creditors ONe having TailÈied his Estate by a Disposition to One and the Heirs of his Body whilk FailÈieing to other Substitutes and by a Contract betwixt him and the Person to whom he Disponed his Estate he having taken the said person obliged to do no Deed in prejudice of the TailÈie but to preserve it inviolable Quaeritur If he the Disponer should make a Disposition notwithstanding may the Heirs of TailÈie pursue Reduction of the same as being made in Defraud of them being Creditors by the said Contract If after the said Contract is Registrate the Heirs of TailÈie have Jus quaesitum So that the Contracters cannot Discharge or prejudge the same Haereditas OMnis haereditas quandocunque aditur cum tempore mortis defuncti continuatur Perez Lib. 2. inst tit 14. Haereditas jacens sustinet Personam Defuncti Ibidem Si Haeres instituatur sub impossibili conditione instituitur pure conditio habetur pro non adjecta Perez ibidem Idem Si institutio fiat ad tempus habetur enim tempus pro non adjecto utile per inutile non vitiatur Ibidem Aditio haereditatis ADitur haereditas vel verbo vel facto verbo declarat scilicet voluntate se velle haeredem esse Facto vero Gerendo pro haerede immiscendo Dummodo sciat delatam ad se haereditatem Regula enim est Omnia quae animi destinatione agenda sunt non nisi vera certa scientia perfici possunt Perez Lib. 2. tit 19. Aditio haereditatis non requirit hodie solennia verba ut olim Cretio Ibidem Haeres Contrahens HAEres videtur contrahere cum Creditoribus iis satisfacere debet Repudiatio Haereditatis QVi repudiavit haereditatem non amplius ad eam admittitur qui tamen a Creditore rite interpellatus est ut haereditatem adeat repudiat non prohibetur eam adire quoad alios Creditores Qui haeres institutus est sub conditione ut non adire ita non potest repudiare ante eventum conditionis Regula enim est Quod quis si habere velit habere non potest repudiare nequit Servus Haeres INstituto servo haerede eo ipso datur libertas sine qua haeres esse non potest Perez lib. 2. inst tit 14. Vltimus Haeres IF a Donator by a Gift of Vltimus Haeres will be Lyable to the Defuncts Debt personally Effeirand to the Estate And if he be not what course shall be taken to affect it If such Universal Successors be Lyable in solidum If they be found to be Lyable Personally unless they give up an Inventar And what shall be the method of giving up an Inventar Heirship Moveable IF a Son that is Forisfamiliat and has a Family will get a Moveable Heirship by his Father Ratio Dubitandi He is sufficiently instructed and aocomodated as Pater Familias And e Contra the other Children though Forisfamiliat will be Executors and Exclude him and in that case there is no Reason that all should be Executry and the Heir Excluded Whether a Coach and Cart will fall under Heirship with the Horses belonging thereto the time of the Defuncts Decease And whether not only the Plough but Oxen or Horses that goes in the same will belong to the Heir An Heretrix being Married Quaeritur If she may have a Moveable Heirship Ratio Dubitandi That she is in Familia Mariti and has none of her own Lady Levin Quaeritur If a Jewel may fall under Heirship upon pretence that it is the Jewel of the Family Ratio Dubitandi Jewels are only Jocalia and Heirship is properly Instrumenta fundi or Domus And in England are called Heir-looms
In Saxonia finitimis regionibus peculiares quaedam species sunt in quibus proximus agnatus succedit quas Heergevvettam vel res expeditorias vocant Inter reliquas res ad eum pertinet equus optimus cum ephippio viri mortui gladius optima armatura c. Besold Thesaur litera H. 33. Heergevvettam Money consigned for Redemption whether Heretable or Moveable MOney being consigned upon an order of Redemption Quaeritur If after Decreet of Declarator the same be heretable or moveable Ratio Dubitandi That it belongs to the Creditor and is moveable and as it were in Cash which of its own nature is moveable And on the other part Surrogatum sapit naturam surrogati and as the Relict would have a Terce so the Heir who only can Renounce ought to have right Sums Heretable or Moveable A Sum being due by Contract wherby the Buyer of Lands is obliged to pay the price But so that it is provided that it should be retained for payment of annualrent until an infeftment of warrandice upon the Lands be purged Quaeritur whether the said sum be Heretable or moveable Homologation Sir William Ker having got a Right under the great Seal to debateable Lands upon the borders wherein Ker of Cherrytrees pretended a Right and Interest and Property by a prior Gift and Bennet of Grubet an interest of Commonty The said Sir William Ker and Cherrytrees did by a minut oblige themselves to communicat their Rights so that Sir William Ker should dispone to Cherrytrees his Right as to the part of the saids Lands Cherrytrees was in possession of and that Cherrytrees and his Successors should be obliged not to question Sir William Ker his Right Thereafter Cherrytrees offered to assigne the said minut to Grubet Quaeritur whether or not the accepting of the said assignation would import an homologation of Sir William Kers Right and a passing from Grubets Right And if Grubet by the Obligement forsaid would be obliged not to question Sir William Kers Right as to Grubets part of the said Commontie Answer That actus agentium non operantur ultra eorum intentionem and Grubet did not intend to prejudge himself but to better his Right and to be free of a plea and he could not question Sir William Kers Right upon that which he was to have from Cherrytrees But could not be barred to question the same upon his oun Right which he had not from Cherrytrees A TailÈie bearing a clause irritant That the course of Succession should not be altered and that the Contraveener should Lose the Right And the Heir of TailÈie in minority having resigned in favours of other Heirs that were not contained in the TailÈie and being infeft upon the said resignation Quaeritur if the said Heir after majority continues to possess and to administer and has granted Commission for doing other deeds concerning the Management of the Estate intra quadriennium utile but before intenting of reduction Ex capite Minoritatis Will he be thought so to homologat the said alteration that he cannot question the same and cannot be reponed against the committing of the said clause irritant Answer It is thought that the possession will not import homologation seing it may be ascribed to the former Right which cannot be said to be altogether extinct by the said other Right the same being null at Least annullandum and reduceible Vide TailÈie altered in Litera T. Horning IF a person charged may be Denounced year and day after the charge without a new intimation If a Pupil may be charged and Denounced and taken with Caption It is thought not seing he can neither Velle nor Nolle nor obey nor disobey There is not Eadem Ratio as to Minors If it may be objected against a Judge that he is at the horn seing Parties may be debarred from pleading as not having Personam And there is the same Reason to debar Judges a Judicando How far a Husband is lyable for his Wifes Debt SEing the Husband by his Marriage has Right Jure Mariti to all moveable Estate belonging to the Wife and acquires the same per Vniversitatem as if she had made an Assignation and Right in his Favours Quaeritur Whether he will be lyable to all her Debts at least Moveable quia penes quem commoda penes eundem incommoda At least if he will be lyable peculio-tenus in quantum locupletior factus est If there be any difference betwixt a Husbands getting a Tocher and when there is no Tocher but Jus Mariti Seing in the first case he is a Creditor by Contract singulari Titulo And in the other he has right Titulo Vniversali omnium bonorum which are understood Debitis deductis If a Husband may be lyable for his Wifes Debt the Marriage being dissolved Item If after the Marriage is dissolved any Debt come to his knowledge that did belong to his Wife during the Marriage Whether he might pursue for the same How far the Husband will be concerned in his Wifes Debts Activé or Passivé De Hypothecis vulgo Wadsetts LIcet tam instrumento alienationis quam Charta a Domino directo concessa terrae ipsae alienentur Jus proprietatis nonnunquam haud transit sed inferius Hypothecae forte ceu impignorationis Cum enim juxta regulam plus cautionis sit in re quam persona aliquando praedia a debitore alienantur in majorem cautionem securitatem ut loquimur Hypotheca autem terrarum alia apud nos impropria dicitur alia propria nec minus ista haec magis propriè est impignoralis Pignus siquidem hypotheca proprie datur ut Creditori caveatur non vero ut utatur nisi die solutionis adveriente debitor in mora aut non solvendo sit impropria vero Invadiatio ea dicitur cum creditor praedii jus investituram nanciscitur ut sibi tam de sorte quam usuris cautum sit sed ea Lege ut praedii possessio penes debitorem remaneat non jure proprietatis qua prorsus exuitur sed conductionis id fit pacto in Instrumento alienationis inserto quo Creditor qui per alienationem Dominus et vasallus est praedium ut suum relocat debitori stipulatus annuam mercedem quae solennes et licitas pecuniae usuras haud excedit addito etiam pacto de reversione seu retractu seu redimendo quando aut debitor aut creditor voluerit aut prout convenit inter contrahentes Hypotheca quae propria dicitur ea est quando sciêª praedium non tantum in Cautionem sed ãâã ãâã ãâã ãâã ãâã alienatur tam terrae quam pecunia quasifunctionem recipiunt ita ut pecuniae usus quaecunque sit ad Debitorem praedii vero usus possessio etiam naturalis ad Creditorem pertineat sed sub modo pacto de retrovendendo Ex his varia nec levia emergunt Dubia Inter ea est illud si ex delicto
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 ãâã 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
of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem
accedat Rebellion A Bond being Assigned by a Rebel and the Assignation not intimate before the Rebellion Quaeritur Whether the Assigney or the Donator will be preferred Ratio Dubitandi That the Assignation denudes the Cedent and the Intimation is not necessary but to exclude another Assigney And the Rebel by his Rebellion does not transmit but amitts and Forefaults any Right that he has which being in nullius bonis is Domini Regis whereas it cannot be said that the Bond was in nullius bonis after the Assignation seing it is then in bonis Cessionarii Whether the Rebels Goods ought to be Lyable to Creditors SEing Bona are understood Debitis deductis and by the custom of all Nations when they are confiscate Transeunt cum sua causa and with the burden of Debts what can be thought the reason that it is otherwayes with us Answer It is thought that seing Lands when they are Forefaulted either to the King or to the Superior they return in the same manner ut optima maxima as they were given that condition being implyed in all Rights of Lands that the Vassal should be faithful and Loyal It has been thought but upon mistake That Moveables and other personal Estate should be confiscate in the same manner without respect to Debts whereas there is Dispar Ratio Lands as said is being given by the Superior with that quality whereas personal Interests are simply allodial and ought to be forth-coming to Creditors who though they have not a Right to the same yet have that Interest that they are the Subject of Execution and it appears to be unjust and to obstruct Trade if it should be otherways Recognition LAnds being Wadset for a Sum far below the value of the half with a Back-tack Quaeritur if there be ground for Recognition if the Land hold Ward Ratio Dubitandi The whole Lands are Wadset If Infeftments of Warrandice be Ground of Recognition A Vassal holding Ward giveth a Charter to his Subvassal or his singular successor upon Resignation with a Novo damus Quaeritur If the Novodamus will import a Recognition A Gift of Recognition being given of certain Lands whereupon the Donator is Infeft and therafter another Gift being given of the same in favours of of another person who is also Infeft after the former Donator but preveens by obtaining a Declarator upon his Gift the former not being declared Quaeritur Which of the Donators will be preferred Ratio Dubitandi That the first Infeftment seems to be preferable the Superior being thereby denuded And on the other part when Casualities and Escheats are Disponed which fall ex delicto as the case of Escheats by Horning There is no consummate Right before Declarator Whether an Appearand Heir if he Dispone and Infeftment follow the Lands will recognosce Ratio Dubitandi Quod nullum est nullum sortitur effectum And not being Infeft he cannot give any effectual Right Minors Disponing Ward Lands Quaeritur If they may be Reponed against Recognition Ratio Dubitandi They ought not to Reponed against Delicta after they are puberes Doli capaces And such Deeds importing Recognition are Crimina Delicta feudalia A Person being Infeft in Ward Lands with a Faculty and Power to the Disponer to Redeem and Dispone upon payment of a penny Quaeritur If the Disponer make use of that Power and do Dispone and if an Infeftment without consent of the Superior be taken whether there be Locus Recognitioni Ratio Dubitandi That he is not Vassal and the Superior has not consented that he should have and use that Power Lands holden Ward being Wadset for a Sum far beneath the value of the Lands with a Back-Tack Quaeritur If there be place for Recognition seing it is intended only that the Creditor should be secured and the Back-Tack Duty is within the half of the Rent Answer It is thought notwithstanding that there is ground for Recognition seing the whole property is Disponed and the Vassal has only a Superiority and is a Tennant only of the Property And beside the Superior has that prejudice that if his Vassal be Year and Day at the Horn the Liferent of the Property will not belong to him but only the Liferent of what is payable to his Vassal by the Wadsetter by the Reddendo of the Wadset Right and the Liferent of the Back-Tack will fall to the King and the Vassal may thereafter Discharge both the Back-Tack and the Reversion so that the Subvassal would have Right to the hail property without the Superiors Consent Redemption Heretable or Moveable QVaeritur If Lands being Redeemable and an order used will the Sum consigned belong to the Heir or Executor Ratio Dubitandi Surrogatum sapit naturam surrogati and the Defunct intended that the said Sum should be Heretable being fixed upon Land and the Debitor had no power to alter the Defuncts Intention as to the condition of any part of his Estate It is otherwayes when the same is consigned in Obedience to a premonition at the instance of a Creditor Vide. Executry quaest 2da in litera E. If a Declarator of Redemption doth denude the Wadsetter so that the Superior without any further Deed either of Renounciation or Resignation may Infeft the Granter of the Wadset If the Superior has receaved the Wadsetter and has given him a Charter bearing the Lands to be Redeemable will he be obliged upon Redemption to Re-enter the Granter without a Regress Ratio Dubitandi That the Granting of the Charter with that Quality seems to import a Regress Answer It is thought that it does not import a Regress it being a Provision betwixt the Parties and to be understood Civiliter that the Superior should not be obliged to Re-enter the Debitor being once denuded but upon such Terms as he shall think fit otherwayes there should be no use for Letters of Regress Order of Redemption AN Order of Redemption being used may the User pass from the same the other Party being unwilling An Order of Redemption being begun by Premonition at a certain time to receive the Money contained in the Reversion and before the term the person premonishing being deceased Quaeritur If his Heir being served before the terme may prosecute and compleat the order by Consignation Ratio Dubitandi Premonition may seem to be personal And e contra the Heir is Eadem Persona so that the premonished is not concerned whether he receive the Money from the Person himself or his Representatives Reduction WHen a Right is reduced Ex capite Minoris Aetatis or Circumvention or upon any other Ground so that the Infeftment whereby the Disponer was disseased is taken away Quaeritur If the Disponer must be re-seased Ratio Dubitandi Fictione Juris By the Reduction he is reponed as if he had not been disseased And on the other part Dissasina being facti quod factum est fieri infectum non potest And when Wadsets are Redeemed albeit the
Right be loused and extinct by a Decreet equivalent to a Reduction yet the Redeemer must be reseased After Redemption What way should the Redeemer be reseased Whether upon the Resignation of the Party infeft upon the Wadset Or what other Way Answer Wadsets were of old granted upon Reversions not contained in the Body of the Right and then the Disponer was in use to get a Regress whereupon the Superior did re-enter him but now the Reversion being in the Body of the Right the Disponer is in the same case as if he had a Regress and should be infeft in the same manner The Wadsetter being denuded by the Decreet he has no Right in his Person to resign and therefore it is thought that the same course should be taken both in the case of Redemption and Reductions as formerly when Regresses were in use Reduction Ex capite Fraudis IF a Reduction be pursued of the Right as Fraudulent may not the Defender alledge that the Disponer had Bona either Movables or others equivalent to the Debt which may satisfy the same and offer to satisfy the Pursuer upon an Assignation of the Debt due to him to the effect he may have Recourse against the said other Estate of his Author Answer It is thought the saids Defences would be relevant and Assignations could not be denyed Infeftment after Reduction A Person having disponed Lands and resigned and being so divested by Charter and Seasine If he should thereafter reduce the said Right Quaeritur what way he shall be reseased Seing the Right was not Jus Nullum sed Annullandum and the Seasine and Resignation that divests is Factum quod non potest fieri infectum Reduction Ex capite Metus QVaeritur If Rights being made dolo vel metu and upon these Heads or Ex capite Lecti being reduceible and such Actions being in rem a singular Successor acquireing a Right from the person lyable to such actions will he be in the same case as Persons acquireing from Confidents Ratio Dubitandi Acts of Parliament are stricti Juris and cannot be extended Reduction upon Minority IF Interlocutors in Jure against Minors may be reduced ex capite Minoris aetatis and Laesion Answer Negative Seing Minors cannot be restored but where either there is captio by the deed of another to their prejudice or by their own deed through their Facility or where there is an omission of Defences But where Defences are not omitted and being proponed and advised are repelled as not relevant The Interlocutor which is a Deed of the Judge cannot be reduced but upon iniquity Reduction Ex capite Lecti A Father having acquired a Right to his Eldest Son of certain Lands reserving his own Liferent and a Power to dispone etiam in articulo mortis And thereafter having on Deathbed made use of the said Faculty and disponed the said Lands to a second Son Quaeritur If the said Right may be questioned by Reduction Ex capite lecti as being made in prejudice of the Heir Ratio Dubitandi That the said Disponer could not do any Deed then in prejudice of his Heir And on the other part that the eldest Son having accepted the said Right with the said Provision cannot question the same 2do The Heir is not in this case to be considered as Heir but as quilibet Seing he is not in the case of an Heir succeding in a Right as Heir seing the Right was not in the Person of his Father and he himself was Fiar with the quality forsaid 3tio The Law of the Majesty is only in the case of Rights granted to a Person and his Heirs simply and the reason of the Law is express that the Defunct when he was in health having had no thought to dispose of his Heretage when he grants Rights on Deathbed of the same is presumed to have been imposed upon or that the said Rights on Deathbed were Elicite or granted by him in Delirio fervore passionis instantis Whereas the said Faculty being reserved in the Right argues the Fathers intention ab initio if he should think fit even then etiam in articulo being sedati animi Nevertheless the said Right was reduced Davison contra Davison November 1687. Re-entry after Redemption IF Wadset Lands be holden of the Superior and the Reversion be contained in the Charter If the said Reversion be not equivalent to a Regress in respect of the Superiors consent to the same And what way the Vassal may be entered upon the Redemption especially if the Creditor be dead and his appearand Heir will not grant a Renunciation and cannot resigne Answer The Superior may be urged to grant a Charter making mention of the Wadset Redemption and Declarator and by Law that he is lyable to re-enter the Vassal having redeemed Regalia MAjora Regalia cohaerere dicuntur Imperatoris ossibus ut ab eo avelli nequeant Imperator alios sibi assumere potest in partem Solicitudinis non vero in plenitudinem Potestatis quae omnem respuit Divisionem quasi Sanctum Sanctorum est in quod nemo admittitur nisi Princeps Bes Thes in Litera K. 3. verbo Kayserliche P. 450. Integra Territoria seu Provinciae Ducatus Principatus Comitatus c. cum Jurisdictione territoriali in feudum Statibus Imperii Ducibus Principibus Comitibus Civitatibus Imperialibus conceduntur cujusmodi feuda Imperii immediata omnia regalia Jura Emolumenta eo spectantia continent Frit Jus Fluviat P. 106. n 3. Regalia non sunt Res sed Jura Regi aut alii Superiorem non recognoscenti in signum supremae potestatis necnon in praemium immensi laboris quem pro Imperio Regimine sustinent ad Rempublicam tuendam competentia Heringius de Molendinis q. 9. n 47. sequen Regality IF Rights of Regality imply and import a Right to Escheats upon Horning albeit they be not express thereanent Ratio Dubitandi It is the common Opinion that they are imported Ex adverso Gifts of Escheat upon Rebellion are inter maxima regalia and Rights of the same are stricti Juris 2do All Letters of Horning bear That the Rebels Goods should be escheat and brought in for His Majesties use 3tio Regalities being Priviledges of Jurisdiction and Exemption from the ordinary Courts of Shires and Justices carry only such Escheats as are incident to Jurisdiction as Mulcts and Fines of persons unlawed or sentenced in Courts of Regality 4to Declarator of Escheats cannot be pursued before Regality-Courts but only before the Session 5to In other Cases of Escheats upon account of Crimes or Delicta as for Theft Slaughter the Crime is not against the King directly but consequentially as concerned in the Loss of a Subject But Rebellion on Horning is directly against the King It will be fitt to see the Right of an Ancient Regality Suppose that the Lord of Regality has Right to the Escheat upon Horning will he have Right only to
such Movables as are within his oun Territory Or to all the Rebel his Movables even such as are within the Regalities of others If a Right of Regality may be granted not only for Lands holden of the King but for such as hold of other Superiors Ratio Dubitandi That the King being the Fountain of all Jurisdiction in whatsomever Lands or Bounds whether they hold immediatly of himself or not may delegate and give thar Jurisdiction to whom he pleases whether the Lands hold of himself or not And on the other part the said Jurisdiction being annexed to the Lands and given intuitu of the same it is hard that a Vassal should be above his Superior and his Superior being it may be Baron a Right of a Barony-Jurisdiction cannot be given in eadem Baronia and farr less of a higher Jurisdiction And no Right can be given to a Vassal in relation to his Lands but such as would pertain to his Superior if the the Lands come in his hands by Non-entry or otherwise And the Right of Regality which did never pertain to the Superior himself cannot come in his hands by Non-entry or otherwise Writs registrate that cannot be found in the Register IF it be Evident that a Writ was put in the Register and yet cannot be found neither Principal nor Booked What Remedy Registratio APud nos Instrumenta aut Literae Registrari dicuntur cum referuntur in Regestum sive Librum publicorum vel actorum vel monumentorum Registratio autem celebratur duobus modis ad diversos fines effectus Ubi enim Instrumentum sive simples ãâã ãâã ãâã ãâã ãâã obligatio scilicet aut Chirographum aut Dispositio aut ãâã ãâã ãâã ãâã ãâã contractus scilicet inter duos aut plures in librum actorum refertur plaerumque fit ut vim instar sententiae obtineat executionem paratam virtute claulae Executivae Registrationis ut vocant in omnibus fere instrumentis solennibus istis aut similibus verbis viz. Et pro majori securitate nos ii scilicet qui obligantur volumus consentimus ut praesens Instrumentum inseratur Registretur in Libris Supremae aut inferioris Curiae competentis ut ita nanciscatur vim sententiae Dictorum Judicum ut Literae Denunciationis Cornuationis ut practici loquuntur continentes spatium sex dierum alia necessaria ut par est pro ea exsequenda Dirigantur constituimus _____ aut eorum quemlibet Procuratores nostros ad effectum praedictum Sic sine lite processu ad ultimam processus metam exitum devenitur sententiam scilicet Executionem omnimodam fictione enim brevis manus omnia ad processum sententiam requisita quodammodo insunt vice enim Citationis quae supervacua est ubi partes praesto sunt consentiunt procurator etiam Rei intervenit dicis causa consentit Judex etiam secundum Instrumenta exhibita per procuratorem eoque postulante ut juxta Clausulam praedictam ad effectum praedictum in Regestum referantur decernit actuarius etiam Clericus Curiae decretum seu Extractum expedit Illud autem tribus partibus constat 1mo Enim praemittitur decretum eâque sequitur formâ Edinburgi _____ die Mensis _____ 16 _____ Coram Dominis Concilii Sessionis comparuit T. W. Advocatus procurator pro D. P. W. Obligato in Chirographo infra scripto exhibuit dictum Chirographum petiitque illud inseri Registrari in Libris Concilii Sessionis ut vim sententiae dictorum Dominorum obtineret ei interponendam qua literae Cornuationis aliae necessariae desuper dirigantur modo inibi specificato quam postulationem dicti Domini Rationi consonam Judicarunt ideoque ordinavere ordinant Dictum Chirographum inseri Registrari in libris dictae curiae decrevere illud obtinere vim sententiae ipsorum Literas Cornuationis alias necessarias inde dirigi modo infra-scripto 2do Subjungitur Tenor ipsius Chirographi 3tio Sequitur Clausula ista viz. Extractum de libro actorum per me viz. Vel Dominum Rotulorum Clericum Registri vel ejus Deputatum Clericum qui subscribit nomen suum Instrumento autem Registrato autographum seu originale a Clerico retinetur in publica custodia Exemplari ut superius diximus Extracto Creditori dato ex quo executio sequitur tam realis quam in personam nec absimile est illud Extractum Instrumento Guarentigiato cujus saepe mentio habetur tam apud Jurisconsultos quam Practicos ex eo enim non minus quam ex sententia solenni Executio parata est Caeterum omnis definitio in Jure periculosa est Juris remedia etiam optima interdum remedio indigere videntur nec Registrationis saluberrimo instituto suum deesse videtur incommodum Instrumenta enim cum in publica custodia sint Incuria Clericorum aut servorum fraude facile intercidunt aut subtrahuntur ea autem perdita esse subodorati debitores aut eorum haeredes actione Falsi eam Improbationem dicimus intentata saepe liberantur nulla Judicis sed summa actoris reapse injustitia In causa enim Falsi agitur ut exhibeatur Instrumentum de quo quaestio est ea in libello comminatione seu ut practici loquuntur Certificatione nisi exhibeatur irritum fore nec ullam ejus Rationem aut fidem habendam esse in Judicio vel extra Judicium In ista autem causa Falsi haud satisfacit Exhibitio exemplaris rite Extracti nec immerito sine ratione Instrumentum enim ipsum multa fortasse sufficeret argumenta tam ad veritatem astruendam quam ad falsitatem arguendam ex comparatione Literarum Subscriptionibus Testium Partium alia plurima quae Extracto tantum exhibito desiderantur Hac Ratione impulsi nec provisis incommodis pluribus gravioribus ut omnis mutatio etiam in melius est periculosa Angli Judices tempore nuperae Usurpationis si fas est praedones perduelles Judices vocare in res novas semper prurientes annitentibus maxime Scotis qui eis assidere ut Collegae haud erubuerunt statuto sancierunt Instrumentum ipsum exhibendum quidem ut in acta referatur Creditori reddendum ut penes eum remaneret Registratio enim cum sit actus voluntariae Jurisdictionis quolibet tempore etiam feriarum explicatur non tantum extra Judicium sed nec ullo alio fundamento nititur nisi consensu partium clausula Registrationis in Instrumento ipso inserta Instrumento autem penes Creditorem remanente nec in custodia publica asservato sententia esset inanis sine ullo probationis adminiculo quod in actis sit Adhaec eadem majora sequerentur incommoda saepe enim non tantum ejus penes quem Instrumentum est sed aliorum interest ut servetur praediis forte haeredibus Taliae
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
persequemur primum secundum facile concidunt sicut enim non refert quomodo aut qua occasione usufructus finiatur sive per se morte usufructuarii naturali vel civili maxima media capitis diminutionibus an per accidens cessione proprietatis consolidatione Inst de usufructu Sed quomodocunque finitus ad proprietatem revertitur ita feudum Jure Vasalli quomodocunque extincto sive naturaliter ut in priori recognitionis specie sive ex commisso ad Dominum redit primaevam suam naturam recuperat nec obstat posterior pars secundi argumenti quae consolidationem fundorum dominantis subalterni in casu concursus in eodem supposito non necessariam esse concludit quia vera est tantum in casu transmissionis quae fit jure extraneo heterogeneo ex titulo emptionis legati vel successionis si Dominus haeres sit vasalli quo casu feudum transmittitur cum onere a vasallo imposito cum enim feudum sit jus transmissibile quin Dominus haeredibus suis qui forte a successione feudi dominantis tallia aut alia provisione arcentur consulere potest feudo acquisito citra consolidationem ad ipsos transmittendo dubium non est atque haec in feudo Emphyteusi qui sunt usufructus perpetui recepta sunt contra Juris Dispositionem de temporali usufructu qui nec cedi nec transmitti potest L. si usuructus ff de Jure dotium Inst de usufructu quae tamen illaesa illabefacta manet in casu extinctionis commissionis qui necessario consolidattonem in pristinum statum sine onere redintegrationem implicat Ad postremum respondetur cum Subfeudorum consolidatio luculenter demonstrata sit subfeuda Domanio seu proprietati annexa consolidata ipsius naturam qualitates inalienabilitatem assumere doctorum qui contrarium tenent authoritatem quia ratione non fulcitur authenticam non esse Et haec est Juris civilis dispositio juxta L. inter socerum ff de pacto dotali sed praxis quae plerumque a Jure recedit hic in Gallia adversatur Rex subfeuda etiam domanio annexo subalternata alienare potest nec requiritur dissolutio Ratio praxeos hujus ãâã ãâã ãâã ãâã ãâã haec obtenditur quod cum annexatio sit stricti Juris odiosa utpote quae absolutam ut leges ipsae loquuntur legibus solutam Principalis potestatis plenitutudinem coarctat nullam extensionem patitur ideoque ea tantum quae expresse annexa sunt Domanii annexi Jure censentur non antem obventiones quantumvis haereditariae accessiones In Gallia certe luculenta Caroli novi constitutio definit nil Domanio annexo comprehendi nisi quod expresse diserte consecratum coronae incorporatum est vel saltem per decem annos ab iis quia rationibus Regiis sunt Domanio annexo accensitum est dispar tamen ratio est in Gallia apud nos ibi enim feuda a genuina feudorum puritate disciverunt tantum non Alaudiorum Patrimonalium Jure censentur proinde ad Dominum cum onere commissa revertuntur apud nos vero tantum abest ut stricta illa feudalitatis tyrannis quae rei suae dispositionem annihilet emolliatur ut contra intendatur adeo ut vasallus Domino inconsulto ne finium regundorum experiri posset nedum de feudo transigere quod tamen Jure feudali licet tit 23. lib. 4. de feudis Et feudum rescissum proditur ob deteriorationem sylvarum stragem cujus praxin refert doctiss Cragius inter Davidem Boner de Rossye Joannem Chrichton de Ennernythie Concludo feuda subalterna ab antiqui seu haereditarii feudi Domino recognita haereditati non conquestibus accenseri feudo Dominanti consolidari Succesor Titulo lucrativo IF the Heir of a Successor titulo lucrativo be lyable as himself to the whole Debt contracted before though exceeding the value of the Estate disponed Ratio Dubitandi The Title of Successor is a penal and passive title and paena non transit in Haeredem 2 do The Heir of an Intrometter was found only lyable in quantum the intrometter was Locupletior in the case of in Lauder And on the other part a Successor Titulo praedicto is haeres per praeceptionem haeres quasi contrahit So that he is not lyable ex Delicto but ex quasi Contractu 2 do The Intrometter is lyable ex culpa For a Stranger may be Intrometter culpa est immiscere se rei ad se non pertinenti If a Defunct should Resign Lands formerly tailÈied and infeft his only Daughter in Fee Will she be lyable as Successor titulo Lucrativo Vide Intrometter Quaestiones 1 2. in Litera I. If he should infeft in Fee his Appearand Heir of TailÈie having a Daughter who succeedeth to him in his other Estate Will the Heir male be lyable as Successor titulo Lucrativo Quaeritur If an Heir male being to succeed by a Right of TailÈie getting a Right of a part of the said Lands will be Successor titulo Lucrativo Ratio Dubitandi The Heir male is not proprie haeres being only a collateral and there being an Heir of Line If an appeirand Heir get a Right only of a Liferent of Lands whereunto he was to succeed will he be Lyable as Successor titulo Lucrativo A person being Lyable to Creditors and then having put his Appearand Heir in Fee of his Estate and thereafter being forefaulted Quaeritur If after his decease his Appearand Heir will be lyable titulo Lucrativo Ratio Dubitandi A Person forefaulted is nullus and cannot be represented A Tutor or Factor having accepted the office and Administration and thereafter having put his Son in the Fee of his Estate before he can be charged with any Malversation Quaeritur If his Son will be lyable titulo Lucrativo for any malversation after his Fee Answer It is thought he will be lyable seeing the accepting the office and obligement ex quasi Contractu is before the Fee A Father having given his Daughter an Estate in Land or otherwise in Tocher to her Husband and reserving his oun Liferent would she be thought to be Successor Titulo Lucrativo if she be his Appearand Heir Ratio Dubitandi It is given to the Husband and not titulo Lucrativo In respect the Husband has Right by a Contract and in contemplation of Onera Matrimonii and the Ioynture he gives his Wife If at least the Tocher in so far as it is immodica may be questioned and retrenched in favours of Creditors A Merchant in Edinburgh having married a third wife and by Contract of Marriage being obliged to employ Twenty two thousand merks upon a Right of Lands or Annualrent to himself and his Spouse in Liferent and conjunct Fee and to the Heirs of the Marrage which FailÈieing
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
Seing the Husband was not in the Fee the time of the Forefaulture the same being taken away by a Reduction If the Woman should thereafter Marry and have Children the time of her decease but disabled Quaeritur If the Children of the Husband who would otherways succeed if the Father were not Forefaulted will Forefault the Right of the said Estate to the King and will be in the case of a person that is Forefaulted and has Right of Succession to the Estate as Appearand Heir Cogitandum Seing there may be Quaestion Quaeritur what course shall be taken to prevent it Answer It is thought that a Gift may be procured from the King making mention of the Forefaulture and Dishabilitation and notwithstanding that His Majesty is not willing that the persons who are to succeed FailÈieing the Wife of the Forefaulted person and the Heirs of her Body should be prejudged having been Faithful and Active in opposing the late Rebellion Therefore He doth ratify the said TailÈie in so far as concerns them and the Right of Succession Declaring that it shall not be prejudged by the Forefaulture and Inability And for their farther security in case after the Decease of the Wife the Children of the Forefaulted Person be surviving and that any Right to the said Estate shall belong and accrue to His Majesty by their Inability then and in that case now as then and then as now he is to dipone to the Heirs of TailÈie succeeding after the Wife and her Children the said Estate and any Right belonging to His Majesty as being or which shall then be in his hands by the Forefaulture and Inabilty foresaid Quaeritur If a Bond granted to a Man and his Wife and longest liver of them two in Conjunct-Fee and to one of their Sons expresly named and the Heirs of his Body which FailÈieing to the Heirs to be procreat betwixt the Husband and his Wife which FailÈieing to the Wife her Heirs and Assigneys be Heretable or Moveable Seing there is neither Infeftment thereupon nor obligement to Infeft Answer It is Heretable in respect of the TailÈie foresaid there being no TailÈie of Moveables or Moveable Sums And the provision in favours of Heirs Male with the Substitution foresaid is equivalent as if Executors were expresly excluded When a Person has settled his Estate upon a Friend by a Disposition to him and certain Heirs of TailÈie therein mentioned and thereafter for security of the TailÈie has taken a Bond from the person in whose favours the TailÈie was made that he should do no deed to disinherit the other Heirs of TailÈie and to keep the TailÈie inviolable Quaeritur If the said person shall without any Onerous Cause Dispone the Lands or grant Bonds for great Sums equivalent to the value of the Estate if the said Deeds may be questioned by the next Heir of TailÈie Ratio Dubitandi The doer of the said Deeds was Fiar and the Heir of TailÈie cannot come to the Estate but as Heir to him and is lyable to his Deeds Answer It is thought in the said case there is a Fideicommissum in favours of the Heirs of TailÈie and though the Estate might be Disponed for Onerous Causes the Disponer being Fiar yet he ought not to have violate the said Fideicommissum by fraudulent and gratuitous Deeds 2do Besides the said Fideicommissum there is a supervenient obligement whereby the Heir of TailÈie is Creditor and therefore may question any deed without an Onerous Cause in defraud of the said obligement and an Heir in whose favours there is obligements qua Heirs may Question any Deeds done by the person whom he represents contrare to the said obligement As V. G. when Deeds are done on Death-bed or contrare to a TailÈie bearing Resolutive clauses though for Onerous Causes and much more in such a case where a Bond is granted to the End foresaid which ought to be effectual and could operate nothing if the Heir could not question the same Earl of Calendar A Person having provided his Estate failÈiening Heirs of his own Body in favours of a Relation and the Heirs of his Body c. and having by the Write bearing the said TailÈie and a Procuratory of Resignation provided that he should be Lyable to satisfy all Bonds Obligements and Deeds done or to be done by him at any time during Life Quaeritur If these should be understood civiliter dureing his Liege poustie or of his natural Life Answer That it is thought that it should be understood during his natural life Seing the Entail being a free gift any provisiones thereincontained in favours of the granter ought to be construed favourably and the word Lifetime is properly to be understood of natural life If it be provided that the said person should marry a Gentlewoman named in the Writ Quaeritur if such a provision be lawful Seing it appears to be contrary to the Liberty that ought to be in Marriage Answer The Right being sub modo he ought to fulfil the same and there is no restraint as to his Liberty Seing if he think fitt he may choose to accept the Right with that quality or not If the said Entail being made in Leige poustie and resignation thereupon the Granter may thereafter upon Death-bed by a paper apart oblige his said Heir of TailÈie to marry as said is or to fulfil any other provision Answer It is thought that seing he is not so stated in the Right of Succession that the Granter cannot prejudge him who has still voluntas ambulatoria and may evacuat the said Right being Master of it and having it in his own hands and power as he may cancel it so he may qualify it as he thinks fit qui potest plus potest minus A person having by an Infeftment holden of the King under the Great Seal taken the Right of his Lands to himself which failÈiening to such a person as he should name by Writ and his Heirs which failÈiening to certain other Heirs did thereafter Dispone his Estate failÈiening Heirs of his own Body to the person thereinmentioned and the Heirs Male of his Body which failÈiening to certain other Heirs of TailÈie bearing a Procuratory of Resignation and reserving the Resigners Liferent whereupon Infeftment followed Quaeritur If thereafter the Disponer should have Children of his own Body what way should they be Infeft Cogitandum If it should be thought that the first Infeftment should stand in favours of the Disponers Heirs the said last Disposition with what has followed thereupon being conditional and the condition not having existed Quaeritur If the Heir of the Disponers Body should thereafter decease whether the said Right by Disposition shall revive at least that the person foresaid in whose favours the Disposition is made may be served Heir to the Disponers Heir of his Body by vertue of the said first Infeftment and the said Nomination and Disposition Sir Robert Hepburn If the King grant a Charter with the
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
not Habile Witnesses And by the Custom except in casu puerperii to prove the Birth of Children to give the Husband the benefite of Courtesie and by the Canon Law Decretal De verborum significatione Cap. 10. And on the other part it is urged by the Civil Law they may be Witnesses except in Testaments and by the Canon Law they may be Witnesses in causa Matrimoniali and by our custom in Criminibus occultis domesticis and in atrocioribus as Murder Treason and Falsehood And in Answer It is urged that where the Civil Law is altered by the Canon that is to be followed and that Women cannot prove Marriage and ought not to prove the Dissolution and in causa Matrimonii Witnesses should be above all exception Cap. 1. de Consanguinitate And if any of the Canonists were of another Opinion it was because the effect of Divorce was separatio mensae Thori non vinculi and in Treason and such Crimes much is indulged ad vindictam publicam but not ad vindictam privatam when such pursuites are only for private interest And it is not presumed that the Kings Advocat will corrupt Witnesses and in whatever case either by the Canon Law or ours Women are admitted It is only ubi constat de corpore delicti which is not in Adultery where there is not a Child and in whatever case even when the publick is concerned VVomen are never admitted but to adminiculate And Quando concurrit unus testis habilis supplet inhabilitatem alterius And there being Fourty or Fifty Processes of Adultery within this Hundred Years VVomen VVitnesses were never received and they are not admitted in causa scandali before the Commissars to prove injuria verborum much less in Crimine Adulterii Obligements to employ Sums of Money for Provision of VVives IF a Person be obliged by Contract of Marriage to employ a Sum of Money to himself and his Wife the longest liver in Liferent and to his Heirs Quaeritur If the said obligement be not performed what course the Relict may take to affect thereupon his Estate having no Heirs Creditors being in competition of Diligence And if she may not pursue his Appearand Heir as lawfully charged making mention of the Obligement and that the Heir will not perform the same and that loco facti succedit interesse and therefore to hear and see him decerned to pay and make forthcoming to her the said Sum that it may be employed conform to the said Obligement and to hear and see it found and declared that the same Execution shall follow upon the Decreet by Adjudication or otherwayes as is competent to other Creditors If a Relict will be preferable to other Creditors A VVomans Jointure A Man getting a Tocher and giving a Joynture in order to his VVifes Aliment and she having a Joint Right with him If he become Bankrupt will it be altogether ineffectual dureing Life Ratio Dubitandi It is Alimentary and she is a most favourable Creditor and otherwayes it should be Societas Leonina VVoods WHen a Liferenter is Infeft cum Nemoribus Quaeritur Quid Juris VVhen the VVood falleth to be cut dureing the Liferent VVrack IF Ships or Barges belonging to this Kingdom do make Ship-wrack within the same Quaeritur VVhether the Representatives of the owners may claim the Goods and not the King Or any Infeft cum Wrack Ratio Dubitandi That by the Act of Parliament Ja. 6. Par. 9. Cap. 124. Ships belonging to these Nations where that Law has not place are to be in another case than the Ships belonging to the Nations where the Law anent Ship-wrack has place and it seems reasonable that the King 's own Subjects and their Ships should be in alse good case as the Ships of any Nation whatsoever and that their Ships and Goods should not be lost upon pretence of VVrack unlese there were a positive Law to that purpose and the foresaid Act implyes that it is Triste Lucrum and not to be owned but Lege Talionis Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto BY a Charter under the Great Seal in anno 1603. His Majesties Grandfather did give and grant to Lodovick Duke of Lennox the Office of Admirality in these terms Totum integrum Officium Admiralitatis nostri Regni cum omnibus privilegiis honoribus Commoditatibus eidem spectantibus The said Charter is not only of the said Office But of the Dukedome of Lennox and of the Lands therinmentiond belonging to the same And as to the said Lands and Dukedome the said Charter is upon the Dukes Resignation the same having formerly pertained to him But as to the said Office of Admirality the same is not given upon the Dukes Resignation but is casten in in the Novodamus whereas the Clauses of Novo-damus do not usually contain as to the Subject Disponed more nor did formerly belong to the Resigner seing de novo dare renovare doth suppose a former and preexistent Right There are indeed Ratifications in Parliament of Lodovick Duke of Lennox his Right of the Office of the Admirality But it is to be considered that by ancient Laws and Acts of Parliament it is Statute that heretable Offices should not be given or Disponed in Fee or Heretage and if they should de facto be disponed they should be given with great deliberation and deliverance of the Parliament s appears by the Acts 43 and 44 King James 6th his 11th Parliament Ratifications do ordinarly pass in Parliament of course without voting the very last hour of the Parliament when it is to dissolve and how little weight should be laid upon the same it appears by the Ratification produced for his Grace the Duke of Lennox dated 23 of October 1612 which doth ratifie the Infeftment Granted to the said Lodovick Duke of Lennox of the Offices of Great Admiral of Scotland and of all the Isles and bounds thereof with the Offices of Lieutenendrie upon the seas and Collonellship and Justice General and Office of Judicatorie Criminal and Civil with all the Priviledges Dignities and Casualities of the same set down in the said Infeftment albeit no such Infeftment for any thing known is or can be produced and the foresaid Infeftment in the year 1603 Granted to the Duke of Lennox is only simple of the Office of Admiralitie Regni nostri without any mention of the Isles or of the Office of Lieutenendrie upon the Seas or Collonellship and Justice General and of the Office Judicatorie Criminal and Civil And the said Act of Parliament is blank as to the date of the Infeftment which is ratified whereas if there had been any such Infeftment of the Tenor and Extent foresaid it would have then been produced the tyme of the said ratification And if it had been then produced the ratification would have expressed the date of the same It Appears by certain
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Bonds and to procure Discharges from the Creditors to Parkley and his Cautioners And nevertheless having payed the said Sums he did not take Discharges but Assignations to the saids Bonds which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor who did thereupon Arrest a Sum due by the Earl of Callender to Parkley Thereafter Captain Monteith having Right to Callendars Debt by Assignation from Parkley obtained a Decreet against the Earl which being Suspended upon double poinding It was alledged for Gloret that he ought to be preferred in respect of his Assignation and Arrestment whereunto it was Answered that Kinglassie being obliged as said is to pay the saids Sums had payed them and whereas he should have taken Discharges he had taken an Assignation Blank in the Assigneys Name and had filled up Glorets Name in the same So that Assignation being procured by him and lying by him and he being Master of it it was in effect his and he was in the same case as if the Assignation had been granted to himself and he had made a Translation to Gloret in which the Exception upon the obligement foresaid to relieve Parkley as it would have been competent against Kinglassie would have secluded also Gloret his Assigney by Translation In this Process Gloret his Oath being taken and he having declared that the Assignation was procured by Kinglassie and by him delivered to Gloret and that he payed nothing to the Cedent but that the Assignation was given to him by Kinglassie that he might be satisfied of certain Sums due to him be Kinglassie which he was to Discharge if he recovered payment by vertue of the said Assignation The Lords upon a Debate in praesentia preferred Monteith and found the Exception which was competent against Kinglassie if the Assignation had been to him and transferred by him to Gloret is competent against Gloret and that he is in the same case as if he had Right by Translation from Kinglassie This is most just and founded upon Law and Equity seing otherwayes Fraud cannot be obviate And in Law plus valet quod agitur quam quod simulate concipitur aut exprimitur And Fictione brevis manus Though it appear that it is but one Act viz. The Assignation made to Gloret yet in construction of Law there is two Acts viz. The granting the Assignation blank to Kinglassie which in the interim before it was delivered to Gloret was his evident and an Assignation immediatly made to himself and thereafter the filling up Glorets Name and the delivery of the Assignation to him which upon the matter is a Translation Spotswood for Monteith Lockheart Cuninghame Maxwell and Weir for Gloret D. 55. MckenÈie contra Fairholm Eod. die SIR George MckenÈie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father Ex eo capite that it was null ipso jure in respect he was Minor for the time and his Father was loco Curatoris to him and had not Authorized him at least could not be Author to him in rem suam It was alledged that he had not intented Reduction within the quadriennium utile And as to the Declarator of Nullity the reason was not Relevant In regard Bonds granted by Minors having Curators without their consent are Null they being interdicted eo ipso that they do choise Curators that they do nothing without them But Bonds granted or other Deeds done by Minors wanting Curators are not Null in Law but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction And that the Father though he be Tutor in Law for the Children being Pupils he is not Curator being puberes and of that Age that they may choise their their own Curators The Lords notwithstanding Found the Reason relevant and declared the Bond Null as to the Pursuer Quibusdam refragantibus inter quos Ego upon these Grounds that there is a great difference betwixt Tutors and Curators Pupills and Puberes the Father haveing by the Law power to name Tutors and consequently being Tutor of Law himself and having that Authority which may be derived and given by him to others whereas he has no power to name Curators to his Children when they are of that Age that they may choise themselves And though he should name Curators in a Testament his Nomination could not bind his Children And 2. If Children being Puberes should choise any other persons to be their Curators they would exclude and be preferred in that Office to the Father Whereas habenti Curatorem Curator non datur 3. If a Child should have an Estate aliunde and the Father his Son being pubes should cessare and be negligent in the Administration of his Estate there could be no Action against him for his omission which might be competent against him and his Heirs if he were Curator Gibson Clerk Sinclair for Fairholme the Defender Wedderburn and Lockheart for the Pursuer D. 56. Vrquhart contra Frazer Eod. die A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer for 24000 Merks and the Granters of the Wadset being obliged to warrand the Rental besides Custumes to be Twenty Chalders of Ross bear and to furnish Tennents and to cause them pay the said Duty and for each Boll undelivered Ten Merks Sir Alexander Vrquhart of Cromarty Donatar to the Escheat of the said Sir Thomas Elder and Younger pursues the Heir and Executor of the Wadsetter for the superplus of the Rent of the said Lands exceeding the Rent of the foresaid Sum for diverse Years In respect the Contract was usurary It was alledged by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond or Contract with Concourse of his Majesties Advocate It was Replyed That Rei persecutoriâ he had interest to pursue for what was indebite payed The Lords Found That the Process could not be sustained without concourse of His Majesties Advocate The Act of Parliament being express that the Creditor cannot repeat the excrescence above the Annualrent unless he concurr with the Advocate to reduce which appeareth to be provided of purpose to oblige the Creditor to inform and concurr with the Advocate for reduceing so unlawful pactions D. 57. Vrquhart contra Cheyne Decemb. 8. 1666. SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing for Surety of 4000. Merks borrowed from Lumisden the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the saids Lands and Fishing and reversion of the said Wadset pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset and to hear and see it Found that the Sum due upon the Wadset was satisfied and payed by the said Walter and his Authors Intromissions It was alledged that the Wadset
Disposition upon the Certification seing the Write was produced and not suspected nor questioned to be false and the Defender did excuse and purge her negligence as said is and the Disposition being in her favours who was sub potestate Mariti and should be defended by him having her self in Law neither velle nor nolle his negligence should not undo her And therefore the Lords having considered also the Difficulties in the Debate upon the Reason they reduced the Disposition in manner aftermentioned by reserving to the Defender to pursue for the said pretended Debts and declared that if she recovered Decreet the Pursuer always being called that there be no collusion the Defender shall come in pari passu with the Pursuer and that the Disposition shall stand to that effect only Both the Parties acquiesced to the Decision D. 81. Cheap contra Philp. eod die MR. Cheap pursued a Reduction of a Disposition made by _____ Philp in favours of Mr. John Philp upon these Reasons That it was subscribed by two Notars and their Subscriptions did not bear de Mandato and because one of the Notars was known to be of so great Age that he had not been for a long time employed as a Notar and that he had only subscribed his Name The rest of the Solemn Words used by Notars when they subscribe in subsidium being writen by the other Notar Therefore another Notar had been also used besides the two Notars And that no respect ought to be given to his Subscription by reason it was ex Intervallo and not uno contextu 2. That the Disposition was in lecto The Lords When the case was reported debated upon the first Reason and in special upon these Points 1. Whether in Subscriptions in subsidium by Notars it be essential it should be exprest That they subscribed ex mandato and if that solemnity may be supplied by offering to prove that the Notars were Rogati It was urged that Minuts and Abbreviations of Seasins might be extended and transumed though none of the ordinary Solemnities be exprest and therefore such Defects and Omissions may be supplyed It was Answered That in Abbreviations Omnia praesumuntur solenniter acta But when an Instrument is compleat or any other Write if it want the Ordinary Solemnities they cannot be supplyed solennitas non praesumitur And being only probable by the Write it self it cannot be made up by Witnesses 2. It was debated Whether a Father or Grand-father could be Notar in a Write or Right in favors of the Son or Grand-child The Lords did demurr upon these Points and thought fit that before Answer as to these the Reason founded on Lecto should be discussed D. 82. Watt contra Halyburton eod die JAmes Halyburton being infeft upon a Comprysing in some Acres in Dirleton did grant a Disposition of the same to Adam Watt whereby he was obliged to infeft him by two Infeftments whereupon the said Adam Watt his Son having Right by Assignation from his Father pursued William Halyburton as Heir to the Disponer for implement and obtaining himself infeft and thereafter to infeft the Pursuer It was Answered That the Disposition was in the hands of Adam Watt by the space of twenty years and that he had made no use thereof and that the Defenders Father had done all that he could for denuding himself of the said Right the said Disposition bearing a procuratory of Resignation and that the Lands holding Ward if the Defender should enter his Ward and Marriage would fall so that unless the Pursuer would warrand him as to that hazard he cannot be obliged to infeft himself The Lords decerned reserving Action to the Defender for Damnage and Interest as accords D. 83. Key contra Fleming 15. June 1667. GEorge Fleming having an Infeftment of Annualrent out of the Lands of Cambo and thereafter having comprysed for his Principal Sum It was Found in a double Poinding and Competition betwixt the said George and Gilbert Key another Creditor of Cambo that the said Gilbert should be preferred in respect of the said Gilbert his Infeftment in an Annualrent That Decreet being suspended Fleming craved to be preferred in respect his Right of Annualrent was before Key 's Right It was Answered That this Infeftment was extinct and taken away by the Comprysing and that he could not now have recourse to it after a Decreet of Preference in foro contradictorio It was Replyed That Decreets of double poinding preclude as to bygones but as to the future all are qualified for any thing that was then seen The Lords were clear that notwithstanding of the Comprysing he might have recourse to his former Right But the great Question was Whether Decreets of Poinding the Ground against a Party compearing did include him so that he could not be heard against Competent and Omitted which the Lords did not decide but recommended to the Reporter to settle the Parties Gibson Clerk D. 84. Home contra the Countess of Murray 18. June 1667. JAmes Home of Beaprie having Assigned to the Countess of Murray the Gift of Escheat of Sir John Kininmouth and certain Debts due by the said Sir John The Lady by her Bond granted that she had got the said Right and obliged her self either to make payment to the said James of the foresaid Sums or to Repone him to his own place The Lady being pursued upon the said Bond alledged that it was null being granted by her during her Marriage without her Husbands consent It was Answered that the desire of the Summonds was alternative either to pay or Repone the Pursuer Et deceptis non decipientibus succuritur The Lords having debated amongst themselves upon the reason of the Law annulling Deeds stante Matrimonio done by Wives and some argued that Women Married are not in the condition of Pupils who have not judicium nor Minors who have not Judicium firmum and that they are Lyable Ex delicto vel quasi and ex dolo The Lords before Answer to the Debate whether her Assertion in the Bond viz. That she had received the Writs mentioned in the same should be Obligatory at least so far as to Repone the Pursuer They Ordained her to be Examined anent the cause of granting the Bond. Gibson Clerk D. 85. Johnstoun contra Cuninghame 19. June 1667. A Bond being granted to a Husband and his Wife and the Heirs of the Marriage which failÈiening their Heirs was Found to pertain to the Husband after the Death of the Wife in solidum And that these words their Heirs ought to be understood Civiliter of the Heirs of the Husband as being persona dignior D. 86. Watson of Dunnykier contra his Vassals 21. June 1667 THE said Watson having Feued certain Crofts with a servitude in his Muir of Path-head to Winn Divots and Clay for Building and Repairing the Houses Built and to be Built by the Vassals pursued Declarator that it should be lawful to him to improve the Muir
conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having âhe Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
Decreet given thereupon and the same standing there was nothing now to be advised but the Decreet ought to be Extracted or at the most a new Commission should be given to the Pursuer The Lords notwithstanding without respect to the said former Decreet did proceed to advise and Vote whether there was alse much proven as to condemn the said Ship It was urged by some of the Lords That tho res were integra and there were no Decreet there is no Ground to adjudge the said Ship upon the pretences foresaid seing the Skippers Oath being a Party had been taken upon the same and he had declared upon Oath that he had changed his domicile and his Residence was at Stockholme and his Oath being taken they needed no other Probation specially seing his Oath is adminiculate with the Depositions of his Wife and others taken upon the Commission foresaid at Stockholme being positive that he had Transported his Domicile there and no other Probation was adduced to the contrary It was farder urged That the Skipper being a Burgess and being for the time in Sueden with his Wife and his Child The Suedish Owners were in bona fide to think that he was such a person as by the Treaty they might make use of as Skipper And what ever could be pretended against him for his own interest ought not to militate against them It was also urged That His Majesty had written a Letter in favours of the Strangers recommending them to the Lords Favour and Justice and it would be thought a strange Return that the Lords should condemn both the said Ship and the Admirals Decreet absolvitor and their own former Decreet It was nevertheless Voted and Found by plurality that the Ship ought to be adjudged upon the said pretences that the Kings Enemie had the interest foresaid both as Skipper and as Owner diverse of the Lords dissenting D. 208. 23. Decemb. 1674. inter easdem THE Sueds having given in a Bill desireing that seing they offered to prove positive that the Skipper had changed his Domicile they might have a Commission to what Judges the Lords pleased for proving the said Alledgance Some of the Lords were of Opinion That the Alledgance being unquestionably Relevant was yet competent In respect the Lords had by their Interloquitor Found that they had already proven presumptively that the Ship in question did not belong to the Kings Enemies and alse long as that Interloquitor stood they needed not prove any farther the onus probandi of the contrair lying upon the Caper And the said Interloquitor being since reversed and taken away as said is It was neither needful nor competent until now to offer to prove positive the said Alledgance The Lords notwithstanding Found by plurality and by one Vote only that the Alledgance was not now competent the President being of a contrair opinion but being carryed by one Vote before it came to him he could not Vote Je me suis estendu trop sur cet Arrest a cause que les plus habiles scavans des Senateurs opinoyent pour les Estrangers Maistre du Navire aucuns des ceux qui estoyent de l' autre coste estoyent parens ou aliez de Luthquharne qui estoyt Partie gagnoit par l' Arrest 2000 Livres Sterl ou environ l' emportoit par une voix seulement D. 209. Pitmedden contra Seatones eod die IT was Found in the case Sir Alexander Seaton of Pitmedden contra Seaton of Blair That Pitmeddens Brother tho he was Appearand Heir to a Baron he could not have a Moveable Heirship because he was not actual Baro. Some were of opinion that as to that Advantage and priviledge of having a Moveable Heirship it was sufficient that the Defunct was of that quality that he was one of these Estates seing a person once Baro tho he be denuded is semper Baro as to the effect and interest foresaid And a Prelate tho for Age he should become unable to serve and dimit yet is still a Prelate as to that effect And the Appearand Heir of a Baron who has Right and in potentia proxima to be a Baron and is Peer to Barons and may be upon the Assize of Noblemen and Barons if he should be prevented with Death before he be Infeft it were hard to deny him the priviledge foresaid that his Heir should have his Movable Heirship And if his Heir would have the benefite as to a Moveable Heirship his Intromission with the same ought to import a Behaviour Lord Forret Reporter D. 210. Mr. David Thoirs contra Tolquhon 2. Jan. 1675. MR. David Thoirs having acquired from John Forbes the Lands of Craigfintry did pursue an improbation against the Laird of Tolquhon of a Bond and Comprysing deduced thereupon of the said Lands against John Forbes of Gask the said John Mr. David Thoirs's Authors Great Grandfather And Certification being granted and being urged that it should be Extracted It was Alledged that it could not be Extracted but ought to be stopt because the said Bond whereupon the Comprysing was deduced and whereunto and to the Comprysing thereupon Tolquhon has Right by progress was granted to the deceast Mr. William Forbes Advocate and Registrate in the Commissar Books of Aberdeen in Anno 1632 And the Extract was now produced which after so long time and the time of Troubles the Registers being all in such disorder ought to satisfy the production being not only adminiculate but also homologate in manner aftermentioned by Patrick Forbes Grand-child and Successor to the Granter and the said John Forbes the said Patrick's Son In sua far as the said Bond was granted to the said Mr. William Forbes a person above all exception and all possible Diligence both real and personal had been used thereupon by Horning Comprysing and Caption and that the Granter had Suspended the said Bond upon diverse Reasons and did never question the truth of the same and Disponed his Estate to Patrick Forbes his Appearand Heir with the burden of his Debts and it cannot be thought but that he understood the Debt in question to have been comprehended under the general of Debts having been so much distressed for the same And that the said Patrick did homologate the truth of the said Bond In sua far as by a Minute of Contract betwixt him and Tolquhon he had taken a Right from Tolquhon to the said Bond and Comprysing and was obliged to pay for the same the Sum thereinmentioned And the said Patrick having Disponed to his Eldest Son William his Estate the said John was served Heir to the said William his Brother and had homologat also the said Bond by Contract betwixt him and Tolquhon whereby he dispones the Lands Comprysed of new again to Tolquhone and ratifies the said Apprysing and Grounds thereof Which Contract albeit when the said John was Minor was made with consent of his Friends and Lawyers most deliberately the said Mr. David Thoirs
been called ab initio in that Process yet being called incidenter for proving of an Alledgance by the certification foresaid he became Partie therein And as when an incident Diligence is raised against a haver of Writes for proving of an Alledgance and the having thereof is referred to the Oath of the Defender in the incident if he be holden as confest tho the Alledgance be not proven the Pursuer of the Incident will have Execution against him as Haver and for the Damnage and Interest sustained through his Contumacy so it ought to be in this case The Lords Tho the Earl of Loudoun's presumptive Confession being holden as confest as said is be a convinceing evidence that the said Money was payed to him yet they had that respect to him both as to his quality and integrity that they would have Reponed him if he had compeared himself or had written to the Lords that he desired to be Reponed and did intimate alse much to his Procurators and to that effect did give some time but no Return being made they proceeded and sustained the pursuite at the instance of the Town of Edinburgh upon the medium foresaid Monro Clerk D. 218. Letter by the Lords of Session to the King 12. January 1675. MY Lord Lauderdale His Majesties Secretary having writen to the President concerning the abovementioned Process betwixt Captain Gordon and the Suedes anent the Ship called the Wine Grape That the Suedish Envoy had made Application to his Majesty and had represented That the Decreet against the Strangers was caryed but by two Votes and had given in a List to his Majesty of those that were for and against the said Decreet with diverse Reasons against the same It was thought fit that a Letter should be drawen to His Majesty containing the Grounds whereupon the said Decreet proceeded which being done by those who were appointed by the Lords some of the Lords did object against the same That they did mention the Lords indefinitly to have given the said Decreet Whereas His Majesty was informed of the contrary and the Information was true and therefore it was desired it should bear That upon the Votes of the major part which is usual in all Cases the Decreet was pronounced Specially seing the said Letter did containe the Grounds of and did assert the Justice of the said Decreet So that these who had voted against the same could not belye themselves and put under their hand the contrarie of what they had voted And albeit in all Judicatories even in Parliament what is done by the plurality doth overrule and conclude the Dissenters so as to submitt to the same Yet they are not obliged to maintain or assert the Justice of a Sentence and Act that they had been against in their Judgment and vote It was notwithstanding carryed by plurality That without the amendement foresaid the Letter should be subscribed by all the Lords the President having promised to write to my Lord Lauderdale what was truly res gesta when the said Decreet was given And upon that assureance some of the Lords declared when they subscribed that they subscribed not their oun sense but the sense of the Court And though they were concluded as said is yet they were not convinced D. 219. Glendyning contra the Earl of Nithsdale 13. January 1675. WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan from whom the Pursuer had Right and for payment of the half of the duty of the Lands of Douphingstoun conform to the said Minut and Litiscontestation was made in the cause and for proving the rent of the saids Lands of Douphinstoun It was craved that the Depositions of witnesses that had been adduced in the like process intented against the said Earl as representing his Father for implement of the said Minute should be received in this Process But the Lords having considered that the said Earl did not represent his Father active but was pursued only upon the passive Titles and that this process against the now Earl is not against him as representing the last Earl neither was it alledged that he represents him Therfor they Found that the said Depositions could not be repeated in this process Seing res was inter alios acta and acta in uno judicio non probant in alio nisi inter easdem personas or these who represent him D. 220. Edmiston contra Mr. John Preston eod die WAuchope of Edmiston and his Lady as Executors to the deceast James Raith of Edmiston pursued Mr. John Preston lately of Haltrie Advocate for payment of the Tack duty for a Seam of Coal belonging to Edmiston and set to him for certain Years It was alledged for the Defender That he ought not to be lyable for the Years in question because having entered to the Possession of the said Coal and having payed the Duty for the time he possessed he was forced to cease from working in respect the said Coal came to be in that condition that it could not be wrought partly by reason of the defect of Roof so that the CoalÈiers neither would nor could work without hazard and partly by reason of bad Air It was Replyed That the Defender having accepted a Tack of a Subject lyable to such hazards eo ipso he had taken his hazard and was in the case as if he had acquired a Right to jactus retis It was Duplyed That alea and jactus retis and spes in venditione may be and is understood to be sold but in Locatione spes and alea is not thought to be set unless it appear by the Contract that the Conductor should take the hazard seing it is de natura of Contracts of Location that fruitio is understood to be given and set and that merces should be payed ex fructibus And where the Conductor cannot frui upon occasion of an insuperable impediment which does not arise either from his dole or culpa or negligence as in this case remittitur merces as is clear not only when the thing that is set is a subject not lyable to so much hazard but when it is contingent as when Gabells or Custums are set or Fishings or Milns or Coals if there fall out such an impediment as doth interrupt the fruition and perceptionem fructuum as if there be Pest and War in the case of Custums or if Herring should not be got at all or if upon occasion of inundation Milns should be unprofitable or Coal-heughs should be drowned or burnt The Lords before Answer Thought fit that there should be conjunct Probation allowed to both Parties anent the condition of the Coal and the Defenders desisting and ceasing from working thereof and the Occasion of his desisting and if the impediment was insuperable Craigy Reporter D. 221. eod die APPlication being made to the Lords
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
Fidejussoribus ff lib. 46. Tit. 1. leg 39. Et leg 36. ibid. Et. Leg. 11. Cod. eod Tit. The Lords Decided as said is In respect of a Practique produced betwixt _____ in anno _____ relating to a former Practique in anno _____ D. 229. The Minister of Tulliallane contra Colvill of Larg and Kincardne 28. January 1675. IT was Found by the Lords Commissioners for Teinds That the Heretors of Lands having Right cum decimis inclusis were not lyable to the Augmentations of Ministers Stipends and that no Locality could be given out of their Teinds the saids Infeftments being before the Year 1587. And that the Feu-duty payable to Church-men for Stock and Teind in Victual was not lyable thereto because the Teinds not being separate from the Stock and the Heretors having Right to the Lands free of Teinds in effect there were not decimae And by the Acts of Parliament and the Kings Decreet Arbitral Teinds are lyable to Ministers Feu-duties in consideration that the Lords of Erection and Titulars had Right thereto from the King since the Act of Annexation And that the King who might have questioned their Rights was pleased by the said Acts of Parliament and Decreet Arbitral to affect them with the burden of Ministers Stipends whereas such Rights cum decimis were granted by Church-men and did not flow from the King but from them at such time as by the Law then standing they might have granted the same D. 230. Doctor Hay contra Jamieson and Alexander eod die GEorge Steuart Advocate having comprised from _____ Con the Lands of Artrochie and others did dispone the said Lands and his Right of Compriseing to _____ Neilson and thereafter the said Neilson failing in payment of the price the said George Steuart did Comprise back from the said Neilson the said Lands and Andrew Alexander did also comprise from the said Neilson the said Lands and his Right foresaid Doctor Hay Having also comprised from _____ Con the foresaid Lands pursued an Improbation of the said first Comprysing at George Steuart's Instance and having called thereto the said George Steuart and Neilson and Marjorie Jamison who pretended Right to the said Lands he did obtain a Certification against two Bonds which were the Ground of the said Comprising upon Compearance and a long Dependance and long Terms assigned for produceing the said Bonds And thereafter the Doctor pursued a Removing from the said Lands against the said Andrew Alexander and others And it was Alledged for the said Alexander That he had Right to the said Lands and was in Possession upon a Right from George Steuart who had Right thereto as said is by a Comprising against _____ Con the common Debitor Whereunto It was Answered That the Defenders could not found a Defence upon George Steuart's Comprising Because the saids Bonds being the Grounds thereof were false and improven To which It was Duplyed That the Certification against the said Bonds was only granted against George Steuart and that the said Andrew Alexander was not called and that now there is produced the foresaids Bonds And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced but the Principals which were in publica custodia as the warrands of the same could not be then found by reason of the disorder of that and many other Registers upon occasion of the late Troubles and the same being now found aught to be received and sustained as the Grounds of the said Comprysing Seing they are not improven and found false by a Decreet of Improbation upon tryal of the Falsehood But a Certification is only given against the same for not production which at the most doth amount only to a presumptive Falsehood which is now taken away as said is by production of the saids Bonds seing praesumptio cedit veritati It was Answered for the Pursuer That all Persons whom he was obliged to take Notice of and to call to the Improbation of the first Apprysing were called viz. The said George Steuart at whose Instance the said Comprising was deduced and who had also Comprised from Neilson the Right thereof as said is and Neilson himself and that he needed not call the said Alexander who had only a subaltern Right and was not infeft and albeit he had comprised from Neilson yet by that Comprising he had not such an interest as the Pursuer was obliged to know in sua far as the Right of the Lands in question was settled in the Person of the said George Steuart by the Comprising against Neilson after which Neilson had only a Reversion and the said Neilson was called himself as said is And the said Alexander's Right by his Comprising against Neilson being only a Right of the Legal of George Steuart's Comprising against Neilson the Pursuer was not holden to take notice of the said Right and the said Reversion is not only now expired but was expired the time of the obtaining of the said Certification no Order being used thereupon And albeit the said Andrew Alexander was not called yet he did compear in the said Improbation and albeit he pretends that his right was reserved the said pretence is of no weight seing it was reserved only as accords And Certifications being the great Security of the People and specially where the same are obtained upon compearance and after diverse termes are assigned and after Certification granted the samen stopt for a long time upon expectation that the Writes may be got as in this Case the samen cannot be canvelled and loosed praetextu Instrumentorum noviter repertorum The Lords For the Reason foresaid thought hard to loose the said Certification but specially in this case seing the said Alexander will have and take the advantage of Stuarts expired Comprysing and exclude the Doctor who was a true and real Creditor to whose prejudice the said George Stuart and the other Defenders had patched up not only the said Comprysing for small Sums but other Rights which the Donator had been forced after he had Comprysed to question by a Reduction and had prevailed after a long dependence and after they had possest the Lands for a long time And on the other hand the said principal Bonds being now produced they thought it hard that the Doctor should take advantage of the same to exclude the Defenders altogether and therefore they proposed to the Doctor that he should grant a Reversion to the said Alexander upon payment of what was justly due to him within the space of two Years And the Doctor acquiesceing they decerned in the Removing with the quality foresaid Lord Glendoick Reporter Gibson Clerk Actor Chalmers alteri Thoirs Vide 17. February 1676. inter eosdem D. 231. contra Maxuel 29. January 1675. A Bill of Exchange being drawn upon three Merchants without mentioning that it was drawn upon them either severally or conjunctly and one of the persons upon whom it was drawn being pursued for the whole Sum
no Legacy left to them and he was Nephew to the Defunct who had a great kindness for him and the said Legacy was not left to him simply but in case his Wife whom he thought to be with Child should not be brought to bed of a Son 4. The Defender could not accept the said Office of Tutor Testamentar Because he and the other two Tutors were named conjunctly and the other two living he could not be Tutor alone Actor Dalrymple alteri Falconer Monro Clerk D. 234. 3. February 1675. A Removing being pursued from some Lands of the Estate of Collarnie the Lady Collarnie compeared and alledged that the Tennent could not be removed without her consent seing the had right to a Terce by the Law and was not excluded by her Contract of Marriage tho she was provided thereby to a Jointure but not in satisfaction of her Terce or what else she could pretend Whereunto It was Answered That she was not served nor kenned to a Terce and until then she had no interest to compear to stop the Removing The Lords Repelled the Defence and Found she had no Interest Reserving her Right of Terce when she should be served and kend as accords Craigie Reporter D. 235. Oliphant of Provostmains contra _____ eod die A Bill was given in desiring that a Comprising being deduced and the Messenger having deceased in the interim before he subscried the same Therefore an other Messenger who was his Collegue might be allowed and Warranted to subscribe the said Comprising The Lords considered That the Messenger that was on life tho he had been employed to execute the Letters of the Comprising by denounceing and citeing yet he did not sit and was Collegue to the deceast Messenger and was Judge with him the day and time of the deduceing of the said Comprising and that a Comprising being Processus Executivus consisting of the Executions and of the Process and Sentence of Comprising upon the day that the Debitor was cited thereto tho diverse Messengers may act severally as to Citation and Denunciation yet none of them could be looked upon as the Judge and the Pronouncer of the Sentence who ought to subscribe the same but the Messenger that did actually sit as Judge and upon the verdict of the Inquest did Decern and Adjudge D. 236. Cranston contra Mr. Mark Ker of Moriston 4. February 1675. UPon a Bill it was desired that Witnesses should be examined in relation to a Process that their Depositions should lye in retentis But The Lords Found That tho Summons were raised that the samen not being execute there was not a Dependence and that it was a streatch great enough to receive Witnesses before Litiscontestation in a depending Process which the Lords are sometimes in use to do but that Witnesses should be received upon a Bill without the Foundation of a Process it is inconsistent with Form It is to be Regrated That of late the time of the English that Abuse having creept in that there are so many Bills given in and sometimes past through inadvertencie in a hurrie the said custom should be yet retained so that Bills do justle out Process and the hearing of Causes Especially it being considered that they are oft times offered in the very time when after pleading in other Causes Parties and Advocates are removing which is the Occasion that oft times most of the Lords are not advertent when the same are offered And it is a Practice not suteable to the gravity of the Court and not without a dangerous Consequence seing Bills may be anent Matters of great importance which ought to be offered to the Lords in a decent way and should be considered by them deliberatly D. 237. _____ contra _____ eod die THE Ship called the Wine-Grape mentioned in the Case aboverelated Num. 207 Being Found by a Decreet of the Admiral not to be a Prize and thereafter the said Decreet being reduced upon a contentious Debate in foro A Bill of Suspension was given in making mention that the Lords having thought fit during the dependence the Value of the Ship being liquidate the Price thereof should be sequestrate in the Complainers hands upon a Bond to pay the Sum therein contained to the Caper and his Owners if they should prevail in the Reduction foresaid And that he was charged to pay the said Sum the Process being now at a period by the said Decreet Reductive at the instance of an Assigney And that he could not pay the same until an Arrestment made in his Hands at the instance of the Swedes the former Owners of the said Ship should be purged which Arrestment was upon the Dependence of a Reduction intented at the Strangers instance for reduceing of the said Decreet Reductive It was debated upon the Bill and amongst the Lords that the said Decreet being in foro contradictorio was of that nature that it could not be reduced and it were of a dangerous Consequence that after Decreets in foro the People should not be secure but upon pretence of the dependance of Reductions of the same that which was found to belong to them by such Decreets should be again lyable to Arrestment and to questioning And upon the other hand It was considered and alledged That there being Arrestment and Warrand for the same upon the dependance the Debitor was not concerned to dispute what the Issue of the same may be but there being de facto an Arrestment the same ought to be purged which could not be in forme but either by lousing the Arrestment or by refusing the Bill upon the reason of Arrestment the Defender in this Reduction finding Caution to make forthcoming if the Pursuer should prevail The Lords notwithstanding Found That in respect the matter was already decided by a Decreet in foro that the Bill should be refused notwithstanding of the said Arrestment upon the dependance foresaid which was hard as to the Debitor who could not be formally secured but in manner foresaid And likeways hard as to the Strangers seing by the said Deliverance the Lords did in effect predetermine the Reduction now depending and upon the matter did Find That the Pursuer could not have Interest to pursue before the Pursuer was heard in the said Reduction D. 238. Vanse Jaylor of the Tolbooth of Edinburgh 5. February 1675. MR. Vanse Jaylor of the Tolbooth of Edinburgh did give in a Bill complaining that the Jaylor of the Canongate was in use to enlarge Prisoners being put in for debt upon the Warrand and consent of the Creditor at whose instance they were imprisoned whereas the Complainer did not enlarge any such Prisoners without Warrand of the Lords Letters and therefore desired that either he should be allowed to have the same liberty or that it should be denyed to other Jaylors The Lords did consider what was fit to be done in all such like Cases and in end the plurality did resolve that where the Sums were small not
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
Veatch But because some of the Lords in voting were non liquet the Business was delayed Vide supra 9. Febr. 1675. inter eosdem And Vide infra 10. Novemb. 1675. D. 256. Parishioners of Banchrie contra Their Minister 16. February 1675. IN the Case of the Parishioners of Banchrie against their Minister The Lords Found That the Act of Parliament 3. Sess of his Majesties 1st Parl. cap. 20. Ordaining that ilk Minister should have Grass for one Horse and two Kine over and above their Gleb Did import That Ministers should have the said Grass or 20. lib. conform to the said Act albeit their Glebs which they had formerly did extend to four Aikers and much more than would be Grass if the same were left lee to that purpose for a Horse and two Kine Some of the Lords were of a contrary Opinion seing by the Act of Parl. K. Jam. 6. Parl. 18 cap. Where there is no arable Land 16. Soums Grass is to be designed for the four Aikers which the Law appoints to be designed for Glebes and upon the Ground foresaid Ministers having 16 Soums Grass may pretend to have alse much more Grass designed to them as will keep a Horse and two Kine or 20. lib. Hattoun Reporter Hamilton Clerk D. 257. Binning contra Brotherstanes eod die ALexander Binning by Contract of Marriage with Margaret Trotter was obliged to resign a Tenement of Land in Favours of himself and his Wife in Liferent and the Heirs of the Marriage in Fie and accordingly Resignation being made Infeftment was taken to him and his Wife and their Heirs foresaid Thereafter the said Margaret having deceased there being only one Daughter of the said Marriage Margaret Binning the said Alexander married a second Wife and did oblige himself to provide the Heirs of that Marriage to 10000 merks And thereafter did induce the said Margaret his Daughter of the first Marriage after her Minority to give a Bond obliging her to resign the abovementioned Tenement to which she was to succeed as Heir of Provision to her Father in favours of her self and the Heirs of her own Body which failÈiening in favous of Alexander Binning her Brother of the second Marriage and his Heirs whatsomever and to do no Deed to prejudge him anent the Succession The said Margaret Binning being thereafter Infeft as Heir of Provision to her said Father in the said Tenement did by Contract of Marriage with William Brotherstanes oblige her self to Resign the said Tenement in favours of her self and the said William and the Heirs of the Marriage whilks FailÈieing his Heirs whatsomever and upon the said Resignation she and her Husband were Infeft Thereafter the said Alexander Binning her Brother did obtain a Decreet against the said Margaret and her Husband for implement of the said Bond and for granting a Procuratory of Resignation for resigning of the said Tenement conform to the said Bond in favours of the said Margaret her self and the Heirs of her Body whilks FailÈieing in favours of the said Alexander And in obedience to the said Decreet the said Margaret and her Husband did resign the said Tenement and Infeftment was taken to the said Margaret and the Heirs of her Body whilks FailÈieing to the said Alexander After the said Margaret her decease the said Alexander did obtain Decreet against the Tennents of the said Tenement for Maills and Duties which being Suspended by the said William Brotherstanes and turned in a Lybel It was Alledged for him that he ought to be preferred being Infeft long before the Pursuer and 7. years in possession Whereunto It was Replyed That the Defender was denuded of any Right that he had by the Infeftment foresaid in favours of the said Margaret and her Heirs of Provision foresaid and that the Pursuer had thereby Right as Heir of Provision to her To which It was Duplyed That being incarcerat upon the said Decreet against him and his Wife for Implement he had resigned for Obedience as Husband and Authorizing his Wife but did not intend nor could not be decerned to denude himself of his own Right which he had for so Onerous a Cause by his Contract of Marriage The Lords having considered the Procuratory of Resignation granted by the Defenders Wife and himself did Find that he had granted the same not only for Obedience and for his Interest as Husband but for his own Interest and as taking burden for his Wife and so did denude himself of any Right that he had in favours of his Wife and the Pursuer as Heir of Provision And therefore preferred the said Alexander Upon the Debate It was agitate amongst the Lords whether such Clauses in TailÈies viz. That no deeds should be done in prejudice of the Heirs of TailÈie and Provision and their Succession do import that the Granter of such Obligements should not have power to dispose of the Land that is TailÈied and have that liberty which is inherent to Dominium Or if it should import only that they cannot break the TailÈie or provide the Lands in TailÈie to other Heirs The President was of Opinion that the Fiar could not dispone nor do any other Deed And that the said Clause was not restricted to the altering or breaking of the TailÈie But this point was not decided D. 258. Ratraw contra _____ 16. February 1675. AN Appearand Heir having upon an Exhibition pursued by him to the effect he might advise whether he would be Heir obtained the Writes to be exhibited in the Clerks Hands did thereafter upon a Bill desire the samen to be delivered pretending that he had use for the Writes for serving himself Heir and no other person could have any Interest for keeping them but himself The Lords granted the desire of the Bill Albeit some of the Lords thought that the Writes could not be delivered to him unless he were Heir but only such as he should have use of for his Service upon a Ticket to the Clerk to redeliver the same if he should not be served Heir within a certain time And that the Creditors had Interest seing the Appearand Heir if he should resolve not to be Heir might embazle and put the Writes out of the way in prejudice of Comprysers D. 259. Hay contra Gray 4. June 1675. A Merchant having given a Commission to a Skipper to carry a parcel of Salmond to Bourdeaux and upon the Sale of the same there to bring home Wines and Prunes pursued the said Skipper for the said Salmond and profite thereof and referred the Lybel to the Skippers Oath And the Defender having qualified his Oath in these Terms viz. That being upon his Voyage to France he was forced to go in to Holland by Storm of Weather So that he could not go to Bourdeaux And that he was forced to sell the Salmond in Holland and with the price of the same did buy a parcel of Cards and other Goods mentioned in his Oath for the Pursuers use and having embarqued
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 ãâã ãâã ãâã ãâã ãâã 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
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
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
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
time of the debursements or from the time the same was liquidat and cleared by the Suspenders Oath And it was Found That Compensation should be sustained from the time of the Debursements seing the said Sums then grew to be due Debts being illiquid either because not constitute by Wrâte or Decreet or because they are not due in Money but in Victual or such like which must be liquidat as to the Prices and Value before there can be any execution for the same the Question may be of greater difficulty as to the last seing compensatio is sâlutio and ipso jure minuit whereas a Debt in Money cannot be said to be payable and far less to be payed in Victual unless the Creditor be content to be satisfied that way D. 310. Dalling contra McKenÈe 7 December 1675. A Woman is understood to be praeposita negotiis domesticis so that for the Provision of her House she may take from Fleshers and Baxters and others such Furnishing as is necessary and her Declaration and Oath may be taken and ought to be trusted as to the same and the Husband is presumed not to know the particular Quantities and these who do furnish are not oblidged to enquire whether her Husband has given her Money sufficient to provide his House if she be a Person that is not inhibite seing the Husband has a remedy if he has any suspition that she may abuse and wrong him and may inhibite her Glendoick Reporter D. 311. Sheriff of Perth contra _____ eod die IT was Found That the late Proclamation remitting Fines due upon the contraveening of Penal Statutes ought to be extended to Ryots and Fines upon the committing of the same before the said Proclamation the Persons being thereafter Convict before the Sheriff Glendoich Reporter D. 312. Lord Arnistoun contra Patrick Murray of Deuchar 8. December 1675. WHen Lands are pretended to be thirled to a Mill the Heretor has good interest to pursue an Improbation against the Heretor of the Mill of all Rights and Writes bearing express constitution of the said Servitude But that General viz. That the Defender should produce all Writes which may import Thirlage ought not to be sustained in respect there may be Writes importing Thirlage consequentially which the Defender is not obliged to know what the import of the same may be and it were hard that upon pretence of such an Interest the Defender should make his Charter Chest patent to the Pursuer and the Pursuer has a Remedy if he apprehend that the Defender may trouble him upon pretence of Writes which may import consequentially Thirlage he may force him to produce the same by intenting a negatory Action and Declarator of Freedom D. 313. _____ Laird of Wamfray eod die THE Act of Parliament against Protections 3d. Sess of His Majesties 1st Parl. Cap. 3. giving Power to the Lords of Session and Exchequer Privy Council and Justice General to grant Protections to persons summoned to appear before them is only to be understood in that case when they are obliged to appear personally to give their Oaths or to be Witnesses and cannot appear by Procurators And such Protections ought not to be granted upon pretext that Processes of Compt and Reckoning and others cannot be managed without their own presence And this was Found upon a Bill given in by Johnstoun of Wamfray whereby he desired a Protection And yet it is thought that in some cases where it is evident that there is a necessity of the Defenders presence to give Information in the point of Fact especially in general Actions of Compt and Reckoning Protections ought to be granted D. 314. Veitch contra Hamilton 9. December 1675. A General Action of Compt and Reckoning at the instance of Pupils and Minors Post tutelam curatelam against their Tutors and Curators is not consistorial and competent to be pursued before the Commissars where the import of the Action exceeds the Sum and value to which the Commissars may be Judges And the pretence that there are diverse Articles and none of them doth exceed the said Sum is of no weight seing the Reply of articulatus Libellus is only in the case where the Debitor is pursued for diverse Sums which in effect resolves in diverse Actions Whereas actio tutelae is but one general Action and upon one Ground viz. The Defender is Lyable as Tutor and Curator whatever and how many soever the Articles of Intromission be And upon the Ground foresaid the pursuite before the Commissars was Advocate Newbyth Reporter D. 315. The Creditors of James Mastertoun and of his Relict Alice Thine eod die BY our Custom and the Custom of diverse other Nations tho there be a Communion betwixt a Husband and a Wife as to Moveables yet the Husband dureing the Marriage has not only Administration but is Dominus actu and may dispose of the same not only for Onerous Causes but by way of Donation and the Wife has only a Right and Interest habitu which exit in actum after the Marriage is dissolved as to all the Moveables belonging to them the time of the Dissolution And yet if the Husband dispose of his Moveables in fraudem and of purpose to prejudge the Wife and to evacuate her Legitime and part of the Moveables as was Alledged in the case in question the circumstances being such as did evince the Husbands fraud and purpose to settle his Estate upon his near Relations after his Death in prejudice of the Wifes Interest such Donations will not be sustained The said James Mastertoun having made a Disposition in favours of his his Wife with the burden of his Debts so that his Creditors should not be prejudged but that the said Right should be affected with the said Debts It was debated among the Lords what the import should be of the said Clause and if the Creditors of the Husband had thereby a real Interst in the Goods or only a personal Action against the Receiver of the Disposition And it was thought that the Goods being extant and undisposed of the Receiver of the Disposition with the said quality was in the case of a Trustee or Executor And the Creditors of the Husband competing upon their Diligence to affect the same with these of the Wife would be preferable But if they were disposed of by the Wife tho the price be not employed for the use of the Creditors tho they be extant the Husbands Creditors has no Interest in the same seing the Wife was Domina and might sell the same and Buyers finding her in possession are not concerned to enquire what way she should employ the price Vide infra 17. December 1675. Thomson contra Eleis D. 316. Scot contra Kennedy 10. December 1675. A Father or any other person disponing his means may qualify his own Gift and in special with that Provision that if the persons be Pupils or Minors the same should be Administrate by the persons named in
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâon that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
gratuitously Disponed his Estate In praesentia D. 334. Gibson contra Fife 12. February 1676. A Woman having lent 100 Merks upon a Blank Bond and the same being lost The Debitor was pursued for payment of the said Sum and did confess that he had truly borrowed the Money and granted the Bond Blank and he was willing to pay the same being secured against any pursute at the instance of any person who might have found the said Bond and filled up his own name therein The Lords thought the case to be of great difficulty and import as to the preparative that practice of granting Blank Bonds having become too frequent And resolved in this case to take all possible Tryal by the Debitors Oath and otherwayes of the date and Writers Name and the Witnesses in the said Bond And thereafter to ordain the Debitor to pay upon surety that the Pursuer should relieve him of any Bond that should be found of that date and Sum and writen and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk D. 335. Anderson contra Lowes 15. February 1676. THE Lords in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Write thereinspecified proven by the Adminicles thereinmentioned In praesentia D. 336. Marshal contra Forrest and her Husband eod die IN a pursute at the instance of a Minor against his Tutrix The Pursuer having referred to the Tutrix Oath that she had intrometted with diverse particulars belonging to him The Husband of the Tutrix Alledged that she could not declare in his prejudice It was Replyed That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix he could not be in worse case as to modum probandi by the Tutrix her superinduceing a Husband And that the Intromission of a Relict after her Husbands decease being such as to Money Bonds and many other particulars as could not be known to any person but to her self nor proven but by her own Oath It were hard that the Minor should be prejudged of his Probation by her own Deed And the Husband is not in the case where a Debt is only to be constitute by the Wifes Oath seing the Ground of the Debt is constitute by Write viz. By the Nomination or Letter or Tutory And when there is a pursute against any person that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath and the Minor is more priviledged seing by the Common Law Minors have a tacite hypotheck of their Tutors Estate and by our Law they ought to be favoured at least so far as it should not be in the power of the Tutrix to ruine them by convoleing ad secundas nuptias ante redditas rationes The Lords thought the case considerable And Ordained the Tutrix to declare Reserving to themselves to consider what her Declaration should import Forret Reporter Gibson Clerk D. 337. E. of Dumfermling contra the Earl of Callender 16 February 1676. THE Earl of Dumfermling having Right by Assignation to the Obligements contained in the Contract of Marriage betwixt the deceast Earl of Callender and his Grand-mother in swa far as the same is in favours of the said Lady pursued the said Earl of Callender for Implement of the said Obligements and the Lord Almond now Earl of Callender as having gotten a Right to the said Earl of Callender's Estate with the burden of his Debts and the said Earl in the interim having deceased did insist against this Earl of Callender For whom It was Alledged That the Process ought to be transferred against some representing the said Earl of Callender as Heir of Line or otherways And tho the Pursuers Procurators declared they insisted only against Callender for a Declarator that the Estate disponed to him should be affected with the foresaid Obligement It was urged for Callender That the said Earl's Heirs ought to be called Seing the Declarator against him being a singular Successor that his Lands should be affected was only a subsidiarie Conclusion and could not be sustained before the Debt was constitute and the Debt could not be constitute unless the pretended Debitor or some representing him were called The Lords notwithstanding Found Process and that there were no necessity of calling or transferring against the Heirs of the Debitor Actor Sinclar Bernie and others alteri Lockheart Monro Clerk In Praesentia D. 338. Doctor Borthuick contra the Earl of Crawfurd eod die THE Earl of Crauford having borrowed 8000 merks from the Mother and Grand-mother and two of their Children for themselves and in name and behalf of their said Children he is obliged by his Bond to infeft the said Mother and Grand-mother in Liferent and the said Children in Fie in an Annualrent out of certain Lands but by a mistake the Precept of Seasin contained in the Bond is in favours only of the Mother and Grand-mother and for infefting them as Fiars of the said Annualrent and accordingly they are infeft And yet thereafter the said Mother and Grand-mother acknowledging that the said Infeftment was so taken upon mistake did by a Disposition bearing the Narrative foresaid dispone the Fee in favours of the said Children and there was a Pursute intented at their instance against the said Earl of Craufurd for poinding of the Ground Wherein It was Alledged That the Mother and Grand-mother being only Lifrenters could not resign the Fee which they had not and if the Pursuers made use of their Right from them the Defenders ought to be assoilÈied because the Mother and Grand-mother by a Transaction betwixt the said Earl of Crawfurd and them had accepted the time of the Englishes a parcel of Lands in satisfaction of the said Debt The Lords Found notwithstanding of the said Alledgance that the Pursuers ought to have process for poinding the Ground In respect the Mother and Grand-mother had de facto the Fie in their person upon the said Precept and Seasin And the same being given indebite as said is they might have been compelled to denude themselves thereof and therefore might voluntarly and accordingly did denude themselves thereof and the said Transaction could not prejudge them seing they derived their Right from the said Persons qualificate in respect of their Interest and Error foresaid and they might have been compelled to give the same and the Earl of Crawfurd was not in bona fide to contract with them Seing by the Bond granted by himself they were only Fiars and the other but Liferenters Actor Lockhart and Beaton alteri Cuningham and Suinton Clerk in praesentia D. 339. Doctor Hay contra Alexander 17. Febr. 1676. DOctor Hay his Case 28 January 1675. supra resumed and taken to consideration this day And tho some of the Lords considered that it was hard to canvel Certifications in Pursutes of Improbation after a long Dependence and diverse Terms given to produce and delays of Extracting
both upon the said Charter of the Miln and the said Decreet It was Alledged That the Defenders Right bears no Astriction And as to the said Charter it must be understood of the Multures belonging to the Abbot and of the Lands pertaining to or holden of him and that the Lands of Redmyre do not hold of the Abbot but of the Laird of Drum who holds the same of the King and that the Abbot could not astrict any Land but his own and as to the said Decreet that it was a latent Decreet in absence against the Defenders Author and that notwithstanding thereof the defender and his Authors had been in Possession of Liberty in swa far as tho they came sometimes to the Pursuers Miln being nearest and most convenient and the Multure being alse easie as at any other Miln yet the going to a Miln being facultatis wherein Astriction cannot be shown they had used and were in Possession of the said Liberty to go to other Milns It appeared that the same Defence being proponed in the foresaid Decreet 1597. for these who were compearing was Repelled In respect the said Charter was so Ancient and was so expresly of the Multures of the hail Parish And after so long a time it was not necessar to debate the Abbots Power to astrict the said whole Parish And the foresaid Charter does bear that the Abbot did give to the Feuer the said Miln in the same manner and alse freely as one Vmfridus had the said Miln and Multures by a Grant and Right from K. William And it was presumable that the said King who might have thirled the said Lands holden of himself did give the Miln and Multures The said Decreet likewayes 1597. did mention the Production of a Retour before the Sheriff and the verdict of an Inquest concerning the said Multures The Lords having among themselves debated and considered that the said Decreet 1597 tho in absence was a valide Decreet whereby the Defenders Author is decerned in all time coming his Tennents Cottars and Successors to pay the Multure thereinmentioned And that the said Decreet was a standing Decreet by the space of 40 years and never questioned there was no necessity to debate upon any other Grounds than that the Pursuer had thereby a Right to the said Multures Seing the Defenders did not deny that they were in use to come to the Miln but pretend a Liberty and use to go likeways to other Milns And it cannot be said that he had the said Liberty the contrare appearing by the said Decreet which never was questioned and now cannot be questioned being prescrived and yet the Lords AssoilÈied fra Bygones and Services not contained in the said Decreet It being Alledged that the Farm should not be thirled The Lords Found That the growing Corns being Astricted by the said Decreet there ought to be an exception but of Teind and Seed And that the Tennents were Lyable for such Corns as belonged to themselves and the Master for his Farm Actores Sinclair and Lermonth c. for Pittarro alteri for the Defender Lockheart and Falconer Monro Clerk In praesentia D. 352. Stenhouse contra The Heretors of Tweedmoor eod die THE Laird of Stenhouse his Lands being designed for a Gleb pursued some of the Heretors within the Parish for his relief conform to the Act of Parliament In which case in respect the pursute was by the space of 8. or 9. years after the Designation And the Heretors were in bona fide and did possess their own Lands and had made fructus suos The Lords Found That the Defenders were not Lyable to pay the Annualrent for the Sum decerned from the time of the Designation Seing usurae debentur only ex pacto vel mora Albeit it may appear That that Relief that is due ex lege is at least alse effectual as if it were ex pacto And the very Notion of Relief imports that the Party should be relieved of all Damnage sustained by him And the Pursuer was prejudged not only by the want of the value of what he was to be Relieved of but of the Interest of it Gibson Clerk D. 353. Ramsay contra Zeaman 7. June 1676. DOctor Zeaman By Contract of Marriage betwixt him and Margaret Ramsay was obliged to employ 10000 lib. to himself and her in Liferent and the Heirs of the Marriage And was also obliged to employ other 20000 lib. to himself and to the Heirs of the Marriage with a Provision that he should have power to burden the said Heirs of the Marriage with an Additional Joynture to his Wife and the provisions of his other Children at any time etiam in articulo mortis Which Joynture and Provision is accepted by the said Margaret in satisfaction of what else she could claim of Terce or Moveables And thereafter the Doctor in his Testament having named his Son and appearand Heir to be his Executor and universal Legator and having left in Legacy to his Wife the Annualrent of 3000 Merks by and attour her Joynture and diverse Provisions to his other Children and Legacies to other persons His Relict and her present Husband pursued her own Son as Executor to his Father for payment of the said Legacy left to her And it being Alledged That the Inventar of the Testament would not extend to satisfy all the Legacies and that there ought to be a Defalcation proportionably It was Answered That she was not to be considered as an ordinar Legator but in effect was a Creditor In respect of the said Provision and Power reserved to the Doctor as said is And that he had used the said power and faculty The Lords Found That the said Addition being left to her in Legacy she was in no better case than the other Legators and had no preference before them out of the Executry Yet it is thought That if there be not so much of the Executry as to satisfy the Relict her Legacy the Heir will be lyable for what she wants Seing by the said Provision the Heirs of the Marriage are burdened with what he should add to her Joynture etiam in articulo mortis And albeit nemo potest facere ne leges habeant locum in suo Testamento and no person at any time can reserve a Power to burden his Heirs at such a time as in Law he is not in legitima potestate yet when any person gives any thing or makes a Provision in favours of any other person or of his Heirs of Provision he may give and qualify the same sub modo and with what burden he pleases and therefore the Defender being not only Executor but the only Heir of the Marriage will be Lyable by the said Provision to the said Addition and Provision in favours of his Wife and Children albeit left in Lecto And he cannot frustrate the same upon pretence that he will not serve himself Heir of Provision but Heir of Line seing he is the same person and
pendi solita ut in Contractu asseritur Et pro implemento dicti Contractus Charta a dicto Comite filio ejas concessa in anno 1617. dictus Menon investitus ejus haeredes dictas terras possederant donec Dominus Alexander Frazer Archiatreus Regius acquisito Jure Reversionis seu Retractus in dicto contractu Investitura contento Jacobo Hog nepote dicti Menonis praemonito ut moris est ut dictam summam reciperet praedictas terras revenderet Actione declaratoria dictas terras vendicabat Jure Retractus rite ut asserebat redemptas Excipiebat Reus Retractum seu Pactum de retrovendendo apud nos stricti Juris esse specifice implendum eo autem pacto cantum teâras dictas redimendas non solum solutione dictae summae sed adjectum eas esse relocandas in tempus praedictum Locationem autem seu Assedationem nec oblatam nec depositam Replicabat Actor Pactum illud de Relocatione injustum usurarium illicitum esse terras siquidem ejus esse valoris ut merces Relocationis tantum non imaginaria sit Colonum enim pro iis pendere aut pendere posse quotannis sexcentas minas Et si Reo non solum dicta summa 3000 minarum sed etiam locatio adeo diuturna pro mercede adeo exili danda foret specie Locationis ipsam Proprietatem vel ejus Pretium consecuturum Adhaec Constitutione Jacobi 2 di Parl. 6. cap. 19. Statutum esse in Contractibus Hypothecariis quibus terrae alienantur sub pacto de Retrovendendo Relocando post Redemptionem Conditiones Assâdationes istas haud servandas terris redemptis nisi convenerit de justa mercede pensione saltem haud multum citra justam Firmam ut loquimur Respândebat Reus multum interesse inter Contractus Mutui alios puta Vânaâionis Permutationis c. Ubi enim pecunia foeneratur credituâ usurariae stipulationes illicitae sunt pacta alioquin licita reprobantur ut pacta Legis Commissoriae ea ratione quod debitori obaerato iâopi Creditor nihil non exprimet ea autem ratio in aliis Contractibus cessat in hoc casu nec enim in eo mutuum consequenter nec usura nec pactum usurarium nec Debitor inops sed Contractus Permutationis inter Rei avum virum haud locupletem Comitem praepotentem cui terras suas ut sibi si non necessarias saltem commodas flagitanti nedum leges inquiores dare Constitutionem autem praedictam Jacobi 2di in Contractibus pignoratitiis locum habere ubi terrae Creditori impignorantur ut ex verbis Constitutionis liquet when Lands are Wadset In casu praedicto nec Creditum nec Pignus esse avum suum nec pecuniam Comiti dedisse nec repetere posse cum dicto contractui Clausula Requisitionis ut loquimur non insit nec Reus praedictam summam petere possit nec Comes teneatur persolvere avum suum permutasse terras suas cum terris de Blairidryn ea lege satis iniqua ut Reo haud liceat terras avitas reluere Cum penes Actorem extraneum singularem successorem facultas sit redimendi si ea uti velit conditioni parendum terras tempore Permutationis incultas forte steriles fuisse in Regione saltuosa montana si sua parentum industria excultae meliores sunt id in suum detrimentum haud retroquendum Quaestio ista Domino de Castlehill referente in domum interiorem introducta inter Dominos disceptata Cum de ea sententiis variatum visa est altiorem indaginem requirere coram ipsis Partibus Patronis vocatis audienda Actores Lockheart c. alteri Cuninghame D. 359. Mitchel contra Litlejohn 20. June 1676. MR. Litlejohn TailÈiour by Contract of Marriage with his first Wife Clerk was obliged to provide whatsoever Lands Money or other Moveable Goods he should acquire during the Marriage to himself and to the Heirs of the Marriage And thereafter having Marryed a Second Wife _____ Mitchel and having provided her to an Annualrent he did grant a Right to her a little before his decease when he was on Death-Bed as was Alledged whereby he declared that in consideration that his Wife had been very dutiful and it was not reasonable that if the Marriage should dissolve before Year and Day she should want altogether the benefite of her Joynture therefore he wills that tho he should decease before Year and Day she should have a Right to the said Annualrent as it is restricted by the said Write to less than she was provided to And that the Contract of Marriage and Infeftment thereupon should be effectual pro tanto in the case foresaid And is obliged to pay the said Annuity This Deed being questioned upon these Grounds 1. That he could not do any Deed in prejudice of his Heirs on Dead-bed 2. That the Conquest being provided as said is to Heirs of his first Marriage both as to Lands and Moveables he could not by the foresaid Deed being a meer Donation prejudge the Children of the first Marriage Upon occasion of the said question the Lords thought fit to consider what the import of such Clauses of Conquest should be understood to be the same being so frequent And there being hinc inde Angustiae and difficulties on both hands seing upon the one it may appear hard that a Husband should be restricted by such Clauses too much and on the other hand that such Clauses should be ineffectual and in the power of the Husband to evacuate them seing all obligements ought to be understood cum effectu ut operentur And in end it was Resolved that the said Clause of Conquest being conceived in the terms foresaid in favours of the Heirs of the Marriage the Husband doth not cease to be Fiar so that for Onerous Causes he may dispose of whatsoever he acquires and the Heirs of the Marriage will be lyable to his Deeds and Obligements thereanent 2. It was thought That the Husband could do no Deed in fraudem of the said Clauses and of purpose to frustrate the same 3. Tho some of the Lords were of the Opinion that the Husband could not dispose of the Conquest but for Onerous Causes yet others thought that he might dispose thereof without fraud and for Rational Causes and Considerations as in the case in question upon the considerations abovementioned in favours of a dutiful Wife And it was so sound by the Major part albeit others thought indeed that the Husband notwithstanding of the foresaid Clauses might provide a second Wife and his Children by her out of the Conquest dureing the first Marriage if he had no other Estate and the Provisions be competent But that in the case in question the Deed foresaid was a Donation which the Children of the first Marriage being Creditors by the said Clause of Conquest
the Buyer may and ought to take notice of the same whereas Compensation is but quasi solutio and it has never effect until it be proponed That point was also in consideration with the Lords Whether Compensation can be proponed by any person but such as has Right to the Debt And as to this point there were different Opinions and some of the Lords were of the Judgement that any person having interest to defend against Comprysings and pursuites upon the same might alledge they were satisfied in manner foresaid But others were of the Opinion that no person can pretend to compence but he that could discharge the Debt whereupon he would compence and consequently must have Right to the same And in the case in question neither a confirmed Testament containing the Debt due to the Defunct nor any Right to the same was produced The Act of Parliament K. Ja. 6th Parl. 12. Cap. 141. Being so positive that Compensation is only de liquido in liquidum before the giving of Decreets and never after the giving thereof Some of the Lords were of Opinion that tho the Defender had Right to the Debt due to the Defunct Compensation could not be received But some of the Lords having desired that the advising of these points being so considerable should be delayed till to morrow they were not decided Thesaurer Depute Reporter Gibson Clerk D. 363. Lamingtoun contra Raploch eod die A Suspension being craved Upon that reason that the Charger had been Curator and ante redditas rationes could not charge him with any Debt It was Answered That the Complainer being to be Marryed he desired the Charger and some others to be his Curators to the effect they might authorize him to Contract and the Charger had never intrometted Some of the Lords were of Opinion That if it could be verified by the Complainers Oath that the Charger had no Intromission and that these that Intrometted were Responsal In which case by the Civil Law there is no actio tutelae but against these who intrometted the others who had not Intrometted being only Lyable in subsidium the said reason should not be sustained But it being pretended that by our custom all Tutors and Curators are Lyable whether they intromet or not without out distinction and that Pupils may take themselves to any of them Tho it was not made appear that the said point was ever debated or decided yet the Lords Ordained the Complainer to give in a Charge against the Curator and the Compt to be discust upon the Bill Glendoich Reporter D. 364. E. Dumfermling contra Callender June 1676. BY Minute of Contract betwixt the deceast Earl of Callender and Dam Margaret Hay Countess of Dumfermling he was obliged to Infeft the said Lady in the Lands and Barony of Livingstoun in Liferent and Conjunctfee and whatsover other Lands and Sums of Money should be conquest during the Marriage He is obliged likewayes to grant surety of the same to her in Liferent in the same manner as of the former Lands And in case of no Issue of Children the one half of the said Conquest to be disposed upon as the Lady shall think fit And the Earl of Dumfermling having intented a Pursute as Assigney by his Father who was Heir to the said Lady his Mother for implement of the said Minute for declaring what Lands Sums of Money and others were conquest by the said Earl dureing the foresaid Marriage and for Infefting the Pursuer in the half of the said Conquest It was Alledged That the said Obligement and Clause of the Minute as to the Conquest are conditional viz. In case of no Issue of Children and that the said condition did not exist viz. There being an Child procreate of the said Marriage The Lords upon Debate in praesentia and among themselves did Find that the said Condition did exist In swa far as tho there were Children of the Marriage yet there was no Children or Issue the time of the Dissolution of the Marriage by the Decease of the Lady Albeit It was urged That these Conditions si liberi non extiterint vel non sint procreati and that Condition si non sint liberi superstites were different in Law and in the conception and import of the same And in the first case si non sint liberi sine adjecto tempore decessus vel dissoluti Matrimonii deficit ipso momento that there is a Child And the Condition being in the Terms foresaid in case of no Issue both in Law and in Propriety of Speech cannot be otherwayes understood and Interprete And in Claris non est locus conjecturae aut interpretationi which is only where words are Homonymous or Ambiguous And where a Clause is of it self such as may be understood without addition to make any upon pretence of the intention of Parties is not interpretari sed addere intentio in mente retenta nihil operatur And that if there had been Children of the Marriage who had Lived to that Age that they had been Marryed and had had Children who had all died before the Dissolving of the Marriage It could not be said without absurdity that there had been no Issue And both in Law and by our custom when there is any Advantage given or provided by the Law or by Contract in favours of the Husband in case of Issue It is ever understood si liberi sint procreaâi tho they do not survive As in the case of a Courtesy of Scotland And that Conditions ought to be taken strictly and according to the Letter especially in this case the Provision foresaid that the Lady in case of no Issue should have either a Fee or the half of the Conquest or a Faculty to dispose of the same It was farder Alledged That the said Clause doth not import that the Lady should have the Fee or the half of the Conquest but only a personal Faculty and Power to dispose of the half of the Conquest which she had not used And nevertheless it was Found by plurality that the said Provision imported a Fee In respect the said Minute was a short paper drawn by my Lord Callender himself who was altogether ignorant of the stile and conception of Writes And if it had been extended as it was intended it could not otherwayes be extended but the Fee behooved to be provided to the Lady as the half of the Conquest And that the half of the Conquest should be disposed of by the Lady did import that she should have a Fee and Dominium the very nature and essence of Property consisting in potestate Disponendi Some of the Lords were of Opinion that the said Clause did import only a personal Faculty Upon these Considerations 1. That the Right of Dominium being the highest Right and Interest can be given it cannot be thought to be given but when the words are such as are not applicable to any other interest whereas the said words do quadrate alse
whereby it was agreed that Pitrichie who and his Predecessors had an ancient Wadset of the Lands of Achincreive and others being a part of the said Barony should have the Reversion Discharged by Geight and that Geight should give him a new Right of the said wadset-Wadset-Lands irredeemable and holden of the King and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Merks And that on the other part Pitrichie should Dispone to Geight the rest of the Estate and the Right he had thereto by the said Recognition Thereafter Pitrichie having intented Declarator for Nullity of the said Minute upon pretence that Geight did refuse and fail to perform his part did obtain a Decreet and did enter into a Bargain with the Earl of Aboyn and did dispone to him a considerable part of the said Estate that by his Power and Interest in the Countrey he might be maintained and be able to enjoy the rest But before the granting of the said Right to Aboyn Geight had intented a Reduction of the said Decreet of Nullity upon that Reason That the said Decreet was given In respect he had not the Writes at that time in hand to produce and to instruct that he was able to give a Right of the said wadset-Wadset-lands to be holden of the King and that they were now found upon search of the Registers So that he had not been in mora and the not production of the said Writes ought not to be imputed to him but to the Confusion of the Times his Writes being scattered and his Father having been long time a Sufferer and Prisoner for serving the King The Lords Found That the said Decreet being in effect upon a Certification for not Production and Geight condescending and offering to instruct that he had not been negligent and the occasion and manner that the said Writes were not in his Hand and how he had recovered the same he ought to be reponed against the same And that by the Reduction before the granting of the Right to Aboyn it was res litigiosa and Aboyn ought to be in no better case than Pitrichie D. 371. _____ contra _____ eod die A Bond granted by a Woman stante matrimonio for payment of a Sum of Money being ratified judicially It was Found That the Ratification did not bind her being of a Deed null in Law tho it was judicial being likewayes stante matrimonio D. 372. Blair of Kinfauns contra Mr. Thomas Fouler 6. July 1676. IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler It was Found That an Action at the instance of the Executors of a Minister for building a Manss and refounding the Expences of the same is competent against the Heritors for the time and their Representatives but not against a singular Successor and that it is not Debitum fundi Newbyth Reporter Gibson Clerk D. 373. Rynold contra Erskines eod die THE Lords Found That a Father having assigned certain Bonds for provision of his Children the Creditors have not only an Action of Reduction competent to them but a personal Action to refound the Sums uplifted upon the Bonds if the Assignation should be found to be fraudulent But did Reserve to the Defenders to debate whether the same was fraudulent The Defenders having Alledged that the same were granted by their Father having a plentiful Fortune for the time so that he might lawfully provide his Children Newbyth Reporter D. 374. Crauford contra Gordon eod die IN the Case Alexander Crauford contra Sir Lodovick Gordon The Lords thought the point in question viz. Whether or not a Backbond being granted by the Compryser the time that he did receive an Assignation whereupon he Comprysed or by a person having gotten a Disposition did affect the said Rights not only as to the Granters of such Back-bonds and their Representatives but likewayes as to Singular Successors And if the same should be Found to affect if it did affect only while the said Right was personal and before Infeftment but not after The Lords thought the said point to be of that importance as to the Consequence and Interest of the People that it was recommended that they should have their thoughts thereupon to the effect that the same may be decided with great consideration And accordingly this day the case being fully debated among themselves It was carryed and found by plurality of Votes That such Back-bonds do affect even as to a Singular Successor tho extra corpus Juris And albeit they be granted after the receiving of such Rights And that they affect Comprysings even after Infeftments has followed thereupon during the Legal but not after Diverse of the Lords did Argue and Vote against the said Decision and in special A. I. C. N. B. S. T Upon these Grounds 1. A Singular Successor does not succeed in universum Jus as an Heir but only in Jus Singulare And if the said Jus be simple and pure without any quality in corpore Juris any extrinsick quality or Deed may bind the Granter and his Heirs but not the Singular Successor who neither can nor is obliged to know and take notice of any quality that is not in the Right 2. The quality of a Right is an Accident of the same and Accidentis esse est inesse So that in Law where the same is not in corpore Juris it doth not affect the Right as to Singular Successors 3. Upon the Considerations foresaid Reversions and Bonds for Granting Reversions do not militate against a Singular Successor unless they be in corpore Juris or Registrate And tho there be an express Statute to that purpose yet it doth not follow a contrario where there is no Statute Back-bonds should affect seing the said Statute is made conform to the Common Law and is Declaratory as to Reversions being then most in contemplation of the Parliament but doth not derogate from the Common Law in other Cases 4. Back-bonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent and cannot operate more than if a formal Retrocession were made in favours of the Cedent which could not prejudge a Singular Successor unless it were intimate 5. It would be an irrepairable prejudice to the People and to Singular Successors who finding a Right pure without any quality are in bona fide to think that they may securely take a Right thereto And yet should have no remedy if upon pretence of Back-bonds and Deeds altogether extrinsick their Right may be questioned 6. As to the pretence of the prejudice to the People viz. That they are in use to grant Assignations in order to the deduceing of Comprysings thereupon and may be frustrate if the Back-bond should not affect the same is of no weight Seing they trust the Assigneys And it is their own fault if they Trust persons that doe not deserve Trust And they have a Remedy by intimateing the
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate
And it was carryed by plurality that the Adjudication should be reduced Newtoun Reporter Mr. John Hay Clerk D. 388. Sheill Minister of Prestounkirk contra His Parishoners 28. November 1676. THE Lords Found That Viccarage Teinds are ruled by Custom and Local as to the Quota and Kinds and manner of payment of such Teinds as are truely Viccarage So far that in a pursute for Viccarage Teinds The Defenders Alledging that some of them had been in use of paying only some certain Kinds by the space of 20. Years The Lord Found the said Alledgance Relevant to free them of other Kinds Albeit they d d Reply that the Pursuer was in possession of the Kinds in question within the Parish some others of the Parish having been in use to pay the same And that Viccarage is nomen universitatis ut Baronia and possession of a part interrupts Prescription and is in Law Possession of the whole Newtoun Reporter D. 389. John Ker contra Jean Ker. eod die IN a pursute at the instance of a Donator It was Alledged That the Debt pursued for was Heretable quoad fiscum And it being Replyed That the Pursuer had Right thereto as Executor Creditor The Lords Found Process upon that Title tho supervenient The Testament being confirmed after the intenting of the Cause In the same Cause It was Found That a Testament being confirmed the nearest of Kin ipso momento has Jus quaesitum to that part of the Goods which belong to them and do transmit the same to their Executors and these who represent them tho the Testament was not Execute before the decease of the nearest of Kin And that the said Interest and Action being in effect a Legitima and competent to them by the Law and Act of Parliament is settled in their person and doth transmit tho the same be not recovered in their own time D. 390. Scot contra Toish eod die AN Assignation being made in Holland according to the custom there by way of Instrument under the Hand of a Notar a Tabellion having retained the Warrand in his Hands Signed by the Parties was sustained in respect of the custom and consuetudo loci Justice-Clerk Reporter D. 391. Drumellier contra E. Tweeddale 30. Novem. 1676. IT was objected against a Witness That he was Testis Domesticus being Servant to the Defender at least having been his Servant the time of the Citation Whereunto It was Answered That he was not presently his Servant and tho he was his Servant the time of the Citation he might now be a habile Witness The Reason why Servants cannot be Witnesses in behalf of their Masters ceasing in this Case viz. That their Masters might have influence upon them and that they may declare in their Favours out of fear to be put out of their Service And as to the pretence that it is presumed that the Defender put the Witness out of his Service of purpose that he might used as a Witness the same doth amount only to praesumptio hominis which cedit veritati And animus and design not being probable but by the Oath of the Party the Defender and the Witness were free to declare that he was not removed out of the Defenders Service upon the design foresaid And it was more strongly to be presumed that neither the Defender being a Person of Quality nor the Witness would perjure themselves It was farder urged That the witness was to be used upon a paper that had been produced after the intention of the Cause and for improving the Date of the same And that he was removed out of the Defenders Service befor the production of the said paper So that he could not have that prospect and design to use him as a witness and that he was removed upon the account foresaid The Lords before Answer Ordained that the Time of the production of the said paper might be tryed Redford Reporter Gibson Clerk D. 392. Grierson contra The Laird of Lagg 1. December 1676. A Superior having obtained the Gift of his own Ward did pursue his Subvassal at the instance of a Donator in Trust and to his behoof for Maills and Duties dureing the Ward And the Defender having Alledged That the Pursute was to the behoof of the Superior himself and that he or his Predecessor had Disponed to the Defender his Lands with absolute warrandice The Lords Found That the Gift of Ward being given to the Vassal did accresce to the Subvassal paying his proportion of the Composition Albeit it was urged that as the King might have given the said Gift to another he might have given it to the Vassal himself and he could not be in a worse case than another Donator And that the Subvassal knowing the nature of the Right that the Superior held Lands ward was Lyable to all Casualities arising ex natura rei to what Donator soever the same be given It was controverted amongst the Lords What should be the Ground of the Decision in point of Law And some were of the Opinion that it was upon that Ground that Jus superveniens accrescit the Lands being disponed to the Subvassal ut optima maxima But it was the Opinion of others That Jus superveniens accrescit when it is either of the Property or of any Servitude or of Casualities that had fallen before the Right granted to the Vassal but not of Casualities arising thereafter ex natura rei And therefore they thought that the Right should be found to accresce to the Vassal upon that Ground that the Relation betwixt a Superior and his Vassal and the mutual obligation fides betwixt them is such and so exuberant that the Superior should not take advantage of a Casuality fallen upon account of his own person and by his Minority And that a Right of Ward granted to the Vassal himself or to any other to his behoof is upon the matter a Discharge of the Casuality both as to himself and as to the Subvassal that is concerned in consequence Newtoun Reporter Haystoun Clerk D. 393. Home contra Scot. eod die IN a Process for Mails and Duties It was Alledged That one of the Defenders was in possession by the space of 7. Years by vertue of a Tack and had the benefite of a possessory Judgement And it being Replyed That he ought to say that he had a Tack from a person having Right And neverthess The Lords Found That is was sufficient to Alledge that he had a Tack and by vertue thereof in so long possession This Decision seemed to some of the Lords to be hard in respect a Tennent is not properly in possession but detinet to the behoof the Setter So that he could be in no better case than his Master who notwithstanding of his possession either in his own person or in the person of his Tennent cannot plead the benefite of a Possessory Judgement unless he had or should alledge upon some Right And if the Master were called as de facto
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
Corroboration granted by the Son the Fiar they had Comprysed and were Infeft by publick Infeftments at least had charged the Superior So that their Right being publick and for a true Debt anterior to the Childrens Provision they were preferable to the Children their Infeftment being base The Lords Found That the Children should be preferred In respect the Comprysings were against the Son and the Comprysers could be in no better Case than the Son himself whose Right was affected with the said faculty in favours of the Children So that neither he nor any having Right from him could question the Right granted by vertue of and conform to the said Faculty This Decision being by plurality seemed hard to some of the Lords who did consider that the foresaid Faculty was not only in behalf of the Children but of supervenient Creditors if the Father had thereafter Contracted any Debt and if the Father had given surety to the said Supervenient Creditors by base Infeftments and if his Anterior Creditors before the said Contract had comprysed and had been Infeft they would have been preferred to the said posterior Creditors having only base Rights and multo magis to the Children They considered also That the Estate being by the said Contract Disponed simply to the Son with a Reservation only of the Fathers Liferent and the said Faculty and the Son not being obliged to pay the Fathers Debts by the said Contract if there had been 18000 Merks of Debt anterior to the Contract Anterior Creditors might have pursued the Son for the same not only because he was Appearand Heir and Successor Titulo Lucrativo but because he was obliged by the Contract at least his Estate burdened for the said Sum And the Anterior Creditors might either have taken that course or might have Comprysed the Interest competent to the Father by the said Faculty And seing the Son might have been forced in manner foresaid to satisfy the said Creditors he might have granted Bonds of Corroboration whereupon they might have Comprysed and having comprysed and having gotten publick Rights they are preferable to the base Right of the Children In the same Cause The Creditors did alledge that they ought to be preferred to the Children because their Provision was after their Debt and was without an Onerous Cause And nevertheless the Lords Found the Defence for the Children Relevant viz. That their Father the time of the granting of the said Bonâ for their Provision had a sufficient Estate besides out of which the Creditors might have been satisfied This Decision being also by the Major part seemed hard to others who thought that a Debitor could do no Deed in prejudice of his Creditors without an Onerous Cause And tho the Father might be looked upon the time of the granting of Provisions to Children as in a good condition and therefore the Creditors to be secure and needed not do Diligence yet if thereafter he should become insolvent the loss ought to be upon the Children and not the Creditors And that it being a principle That a Debitor can do nothing in prejudice of his Creditor without an Onerous Cause It is certainly both Fraud and prejudice that he should not pay his Debt but should give away to his Children that part of his Estate which the Creditors might have affected And Inhibitions being only in these terms That the Party Inhibite should do no Deed in defraud of the Creditor It might be pretended by the same Reason in Reductions ex capite Inhibitionis that the Party Inhibite did nothing in defraud or prejudice of the Pursuer In respect the time of the granting the Bond or Right craved to be reduced he had Effects and sufficiency of Estate beside Lockheart c. for Queensberry and other Creditors Cuninghame Anderson and MckenÈie for the Children and Relict Gibson Clerk In praesentia D. 419. Stewart of Castlemilk contra Sir John Whitefoord 10. January 1677. SIR Archibald Stewart of Castlemilk having pursued a Reduction of a Disposition of the Lands of Coats made by James Stewart of Minto in favours of Sir John Whitefoord ex capite metus In swa far as the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time and thereafter having a Caption against him had detained him Prisoner and had caused transport and convey him in that condition from diverse places in the night Season and by his Servants had threatned him with long Imprisonment and in end had prevailed with him to dispone to him the saids Lands being eight Chalders Victual of Rent and where there was a Coal of 100. lib. sterl of Rent upon an Obligement only to pay him an yearly Annuity of 400. merks In which process the said Sir John and Duke Hamilton who had thereafter acquired the said Lands from the said Sir John did compear and propone the Defences following 1. That the foresaid Qualifications of Force were not Relevant to import metus qui potest cadere in Constantem virum being neither mortis nor Cruciatus nor so circumstantiate as is required of the Law for founding the said Action And 2 That albeit metus were relevantly qualified the foresaid Deed cannot be questioned upon pretence of the same unless the said James Stewart had been lesed or damnified by the same Seing it appears by the Title quod metus causa c. A Reduction and Restitution upon that head is not competent ubi non est damnum nihil abest as is clear by diverse Texts in the case of a Creditor useing force to get what is unquestionably due to him and in this case the said James had no prejudice in respect he was obliged by an antecedent Minute to dispon the said Lands so that the said Disposition was but for implement of the said Minute which the said Sir John did give back to be cancelled by Minto when he got the said Disposition And 3. It was offered to be proven that after the said James was at liberty the said Disposition was granted by him The Lords Found That the Libel and Qualifications of metus and Force were relevant and yet in respect the Defenders were so positive as to their Alledgance that the Disponer was at liberty when he granted the said Right they allowed a conjunct Probation concerning the said Qualifications of Force and the condition the Disponer was in for the time and the way of granting the said Right whether he was under Restraint and the Impression of Fear or in Freedom Or whether the samen was granted by him freely and voluntarly As to the said other Defence that there was no damnum the Lords repelled the same and would not allow that point of Fact to be tryed whether or not there were a former Minute for Implement of which the said Right was granted And whether it was given back for and the time of the granting of the said Disposition Some of the Lords were of the Opinion That
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothââk Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
AN Assignation being granted for relief and payment of certain Sums mentioned in the Assignation for which the Assigney was Cautioner for the Cedent the same was questioned upon that head that it was never delivered but was still in the Cedents Hands The Lords Found That the said Assignation was never delivered And yet they Found That it was an effectual Evident in favours of the Assigney In respect the Cedent had made the same publick by a Horning thereupon Sir George Lockheart c. alteri Cuninghame c. In praesentia D. 443. Ker contra Kers 25 January 1677. A Disposition being questioned as being made in lecto at least delivered then It appeared by the Deposition of one of the Witnesses used for proving the Lybel that the said Write was subscribed diverse Years before the Disponer was on death-bed and that the same was delivered before death-bed to the said Witness and that the Defunct having called for it on death-bed for drawing two other Dispositions of the Lands contained therein one in favours of the Pursuer the Disponers Heir and the other in favours of a Son of the Disponer who was Father to the Person in whose favours the Disposition in question was made And upon debate amongst the Lords what should be the import of the said Testimony seing the Depositar did not declare in what Terms the same was given to him by the Disponer whether to the behoof of the said Person in whose favours it was made or not or upon any other account for keeping the same so that the Disponer might call for and alter it It was Found 1. That the Disponer might have revocked the same In respect it did not appear that it was delivered to the behoof of the Person to whom it was made This Decision seems to be hard in respect the Disposition was now in the Hands of the Receiver so that it was to be presumed that it was delivered either to him or to the said other Person to his behoof and the delivery ought to be construed and presumed to have been ut operetur and the nature of the Act it self imports that it should be to the behoof foresaid It not being to be imagined that if the Disponer had intended to have retained the Power in his Hands either to make the said Right effectual or not he would have given it out off his Hands 2. The Lords Found Upon the Testimony foresaid That the Disponer having revocked the said Disposition not simply but to the effect foresaid that the said two Dispositions should be granted The Pursuer therefore had not Right to the whole Lands contained in the said first Disposition but that the same should divide conform to the said two Dispositions Mr. Thomas Hay Clerk In praesentia D. 444. Procurator-Fiscal of Glasgow contra Cowan 26 January 1677. THE Commissar of Glasgow having sustained Process at the Instance of the Procurator-Fiscal for the tryal of a falsehood of Executions whereupon a Decreet had proceeded and having upon Probation of the falsehood decerned the user of the said Executions to pay 300. lib. to the Procurator-Fiscal as a Fine and the said Decreet being suspended The Lords Found That the Commissar was not competent Judge to the improbation of Executions by way of Action seing they cannot reduce their own Decreets and Improbation is a Reduction ex capite falsi Justice-Clerk Reporter Mr. Thomas Hay Clerk It is to be considered that the most part of Decreets befor Inferior Judges are for Null-Defence and upon false Executions and it were hard that there should be no Remedy but by Improbations before the Lords which may depend long and are very chargeable So that Decreets before Inferior Judges being for the most part for inconsiderable Sums the Remedy should be worse than the Mischief It appears indeed that the Commissars have not power to Fyne that being a Criminal Jurisdiction and that they are not Judges to Improbation by the indirect manner The Tryal of Falsehood by circumstances and presumptions being Altioris Indaginis and of that Difficulty that it ought not to be left to an Inferiour Judge Item The Tryal of Falsehood as to that effect that Falsaries may be punished ought not to be by any Inferior Judge But it seems to be just and necessary that Parties grieved by such Decreets should be allowed to pursue the obtainers of the same to hear and see them reponed against the said Decreets upon that Ground that they were not cited to the same to be proven by the Witnesses and Executer himself declaring that they pursue to that effect allanerly And it appears not to be inconsistent with Law and Form that this course should be taken seing the Judge does not reduce his own Decreet ex capite iniquitatis and it may be provided that such Pursutes tho they be upon the matter Improbations are only to the effect foresaid and that no other effect or consequence shall follow upon the same and multa fiunt per indirectum which cannot be directly And if a Party who is holden as confest should raise a lybel before an Inferior Judge that it may be Found that he was not Contumax being out of the Countrey or Sick or detained by Storm or some other insuperable Impediment and that therefore he should be reponed and the Decreet should be holden as a Lybel such a Pursute would not be incompetent tho in effect it would be a Reduction upon the matter D. 445. Donaldson contra Rinne 27 January 1677. IT was moved whether or not a Decreet of an Inferior Judge being questioned upon that Ground of Iniquity that the Lybel was not proven and the Depositions of the Witnesses being produced by the Pursuer ab initio The Lord of the Outer House may advise the Probation Or if it ought to be advised by the whole Lords It was Found That the Depositions being produced as said is the Lord may give his own Interloquitor as upon any other Write produced ab initio to instruct the Lybel Tho some of the Lords were of Opinion that the Probation ought to be considered and advised by the haill Lords And it was hard that the Probation being found sufficient by a competent Judge it should be in the power of one single Lord to review the same and find the contrare Mr. John Hay Clerk D. 446. Murray Pupil contra _____ 31. January 1677. A Pupil of 4. Years of Age being pursued upon the Passive Title of a Charge to enter Heir and the Friends conceiving that it were fit to Renounce none of them being Curators nor being willing to meddle and to authorize the Pupil to renounce The Lords Decerned but superceeded Personal Execution until the Pupil should be past Pupillarity Castlehil Reporter D. 447. Master of Rae contra Sinclar of Dumbaith 1. February 1677. SInclar of Dumbaith Sandside and others having in a Hostile manner invaded the Lord Raes Country There was a Criminal pursute intented against them for the
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
given them to the Pursuer to be grassed he might have taken away his own Goods It was Replyed That the Pursuer was not obliged to debate the Right and property of the said Goods but in spolio he needed Lybel no more but that the Goods were upon his Ground and in his Possession and taken away vi and in manner Lybeled And spoliatus ante omnia restituendus The Lords debated among themselves whether the Defence be Relevant and did not decide the case Some being of Opinion that if it should evidently appear that the Pursuer was not in Possession of the Goods as suos but in behalf of the Defender as if there were a Writt betwixt the Pursuer and Defender bearing that the Goods were the Defenders and that the Pursuer contractu Locationis Conductionis had taken the same in graseing that the Defender could not be Lyable for SpuilÈie of his own Goods But if it should appear that there was any violence in taking them away he may be pursued for a Riot D. 460. Drumkilbo contra Mcmath and Oliphant eod die JAnet Mcmath Lady Grange being Creditrix to the Laird of Kilspindie And having upon an Arrestment in the hands of Drumkilbo obtained a Decreet to make forthcoming There was thereafter a Suspension of double poinding against the said Janet Mcmath and Sir Laurence Oliphant of Gask who pretended Right to the Sum due by Drumkilbo by an Assignation intimate before the Arrestment And in the Competition foresaid the said Sir Laurence was preferred But thereafter in an Improbation of the said Assignation at the instance of the said Janet Mcmath the said Sir Laurence having abiden by the same It was Found after a long and litigious dependence by the space of 50 Years that the Assignation was false And William Dick of Grange the said Janet her Son having thereafter intented a pursute against the said Sir Laurence to hear and see it declared that in respect the said Sir Laurence by his compearance and making use of the said false Assignation had been prefered and had rendered the foresaid Diligence by Arrestment ineffectual and had transacted and made benefite of the said false Assignation That therefore In swa far as he was Lucratus he should make the same forth-coming for payment of the Pursuers just Debt Especially it being considered that he had Discharged one of the Cautioners in Drumkilbo his Bond It was Answered That he was in bona fide to acquire a Right to the said Assignation neither knowing nor being accessory to the Forgeing of the same and he had made no benefite by uplifting from Drumkilbo any part of the said Debt but by transferring his Right in favours of Mr. John Blair which he had done bona fide And as to the Discharging the Cautioner it could not prejudge the Pursuer seing the Discharge would fall in consequence of the Assignation The Lords Found That albeit he were not accessory to the Forgery yet having used a false Write and having litigiously so long maintained the same and upon that occasion the Pursuer be ng altogether frustrate he ought to be Lyable in quantum lucratus and what he had gotten more by the Transaction with Mr. George Blair then he had given for acquireing the said Right And the Lords reserved Action to the Pursuer against the Cautioner And in case the Cautioner should be AssoilÈied without prejudice to have recourse against the said Sir Laurence as Accords Actores Lockheart Monnypenny c. alteri Cuninghame c. Mr. Thomas Hay Clerk In praesentia D. 461. _____ contra The Laird of Cramond eod die MR. Cornelius Inglis being Debitor to Mr. John Inglis of Cramond in the Sum of 3500. Merks He did give to Cramond for Security of the said Sum and for relief of Cautionries for him extending to towards 10000 M. a Bond for payment and relieving him of the said Sums with an obligement to Infeft in the Lands thereinmentioned for his Security and relief of the said Sums and a precept of Sasine whereupon Infeftment followed And thereafter Mr. Patrick Inglis the said Mr. Cornelius his Eldest Son did grant a Bond to Cramond relateing expresly to the said former Bond and Right of Relief and in Corroboration thereof and the Infeftment thereupon containing an Obligement for Payment and releif of the said Sums Thereafter the said Mr. Patrick did obtain from his Father a Right and Infeftment of the said Lands upon that narrative that he had undertaken the payment of his Fathers Debts and that he was engaged for him and that the said Right was granted to him for his Relief whereupon he obtained Possession and before any Diligence at the instance of any of the other Creditors he did pay some Annualrent to Cramond upon a Discharge relateing to Cramonds Right and Infeftment foresaid Thereafter there being a Multiple poinding raised against Cramond and some of the Creditors who had deduced a Comprysing against the said Mr. Patrick of his Right the Creditors Alledged that they ought to be preferred because Cramonds Right was only base and the said Mr. Patrick's Right was cled with Possession before any pretence of Possession in the person of Cramond and that they having Comprysed Mr. Patrick's Right are thereupon preferable to Cramond Whereunto it was Answered That Cramonds Right being a Right of Relief could not take Possession ex natura of the Right until a distress and because it was provided by the Right it self that Cramond should enter to the Possession in case of distress and in case he should not be payed of his Annualrent which he could not do before Declarator And that the Lords had diverse times Found that Infeftments of Warrandice whereupon there could be no Possession before Eviction should be preferred to posterior Infeftments and that Infeftments of Annualrent being anterior should be sustained in a Competition with posterior base Infeftments cled with Possession Because the first Term of Payment of the Annualrent was not come when the posterior Infeftment came to have Possession and that the Competition was not betwixt Cramonds and the Comprysers Infeftment upon the Comprysing but Mr. Patrick's own Infeftment and that Cramonds Infeftment was cled with Possession before the Compysers Right and Interest by payment of the Annualrent of the said Sum due to Cramond himself as appeared by the Discharge accepted by Mr. Patrick relating to Cramond his Right and Infeftment foresaid And that base Infeftments by the Common Law being valide And by the Act of Parliament K. Ja. 5th in anno 1540. It being provided that for obviating Fraud by granting private and latent Infeftments in prejudice of posterior Infeftments that are publick being either holden of the Superior or by Possession the said Act of Parliament cannot be extended to this Case In Respect Cramonds Right cannot be said to have been fraudulent and private as to Mr. Patrick In respect he did not only know the same but did ratify and corroborate the said
consent to which doth cease in this case seing the King is not only Consenter to the Subvassals Right but is Author by the presentation A Person having committed Treason and thereafter his Kinsman to whom he might have succeeded being Deceased Quaeritur If that Defuncts Estate will fall to the King or go to the next Heir Ratio Dubitandi That there seems to be a difference betwixt the case in the fifth Question of the Title Heirs when a person being Appearand Heir and having haereditas delata before he commit Treason the same should fall to the King seing he was Haeres habitu and had jus radicatum in his Person before his Treason and therefore Forefaults the same to the King Whereas in this said other case when the Succession fell the Traitor could not have any Right in his Person being nullus and incapable of Succession So that it cannot be said that he is Legitimus and propinquior haeres A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh and the same being confirmed by the King the granter was thereafter Forefaulted so that the Subvassal did come to hold of the King Quaeritur Whether he will hold as he did formerly or Ward as his immediat Superior did A Person being Appearand Heir both in Land and Heretable Sums but not being served Heir And being Forefaulted after the Decease of his Predecessor Quaeritur If he doth Forefault not only the Lands but the said other Heretable Estate Answer It is thought there is a difference betwixt Lands and any other Heretable Estate seing the Appearand Heir is obliged to enter to his Lands to the Effect the Superiour may have a Vassal Lyable to Service or other Duties so that his not entering is delictum vel quasi and the Lands are in Non-entry And he is in the same case in Relation to the Superiour as if he were entered Whereas as to any other Heretable Estate he needeth not owne or claim the same but if he pleases and he cannot have Right unless the same be settled upon him by a Service and consequently cannot Forefault that which is not his Vide supra in the Question concerning Cesnocks Forefaulture A Band being granted to an Englishman but bearing Registration in Scotland and being granted by a Scotsman If the Person Creditor be guilty of Treason whether it will fall under Forefaulture in England or Scotland Cum essent Sempronio duo filii Primogenitus patre adhuc vivo perduellionis damnatus fuerat postea patre mortuo utroque filio superstite nam perduellis fuga se subduxerat de haereditate patris ambigitur an ad primogenitum ex ejus persona ad Fiscum pertineret Nam Jure civili quod indigno aufertur fisco quaeritur Jure nostro haeres apparens Majestatis damnatus nedum sua sed bona haereditaria praedia quae sua forent si adita esset haereditast amittit ad fiscum transfert Sed distinguendum Et multum interest an filius praemortuo patre crimen postea admiserit an vero ut in casu praedicto ante patris obitum Majestatis reus damnatus sit priori casu cum primogeniti persona adhuc integra sit confestim a morte patris dies cedit haereditas ei delata est adeo ut qui etiam patre superstite haeres fuerat in spe Jam incipit haeres esse habitu spe certa radicata cum libuerit actu aditione haeres futurus si igitur postea maximam capitis diminutionem patiatur haereditas ipsi delata jus succedendi infiscum transit altero vero casu filio ante mortem patris damnato haereditas patris morte nec delata est nec deferri potuit utpote poena servo qui in jure nullus nec personam habeat in qua successionis jus radices agere queat his consequens est fratrem juniorem patri haeredem fore quia absurdum esset patrem a crimine alienum forte tam suis quam familiae meritis commendatum ex delicto filii nihil amittere dum viveret noxa enim caput sequitur morientem autem tum bona tum familiam memoriam perdere nec perduellis aut fisci melior debet esse conditio quod damnatus poenae se substraxerit extra quaestionis aleam est secundogenitum patri haeredem futurum primogenito patri praemortuo 2da In ista specie facti suboritur quaestio viz. si venia data restituatur primogenitus an frater desinit esse haeres Et quidem distinguendum est 1mo An cum restituitur haereditas integra ex asse adita sit fratre ex inquisitione haerede renunciato in omnibus quae patris fuerant praediis investito cum enim terrae in haereditate sunt ante investituram haud censetur esse aditio isto casu restitutio quae est ex gratia nemini nocet nisi concedenti nec adimit jus fratri quaesitum quod rite constitutum quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat 2do Sin restituatur primogenitus haereditate nondum ullatenus adita eo casu quia res adhuc est integra sublato obice per restitutionem qui oberat ne haeres esse possit incipit haeres esse habitu aditione actu haeres erit 3tio Haereditate partim adita partim non fra re in quibusdam terris investito in quibusdam haud sasito novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit in reliquis primogenitus haeres erit tantum adeo discrimen est inter jus inchoatum id quod penitus consummatum quaesitum est Multa enim cadunt inter calicem supremaque labra Forisfamiliation QVaeritur If the granting of a Provision to a Child importeth Forisfamiliation so that the Child cannot claim a Bairns part Or if it be to be considered what the subject of the Provision is Viz. Whether it be Heretable or Moveable Seing in the first case it seems that the Provision being out of a different Subject should not exclude from a share of Moveables David Scot Son to Walter Earl of Buccleugh Funeral Charges IF Funeral Expences should be deduced as a Debt off the whole or only off the Deads part If the Funeral Charges for Burying the Husband should affect the whole Moveable Estate or the Deads part Answer It should affect the Deads part seing it is not a Debt contracted during the Communion And the Deads part cannot be used or employed better than to Bury him If the Funeral Charges should be deduced in Relation to the Quot so that the Quot should be only of the Deads part free of the said Debt Answer It is thought it should not be deduced for the reason contained in the preceeding Querie G. Gestio Haeredis IF an Appearand Heir medle by
entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause âum omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing
the Branches of the Substitutions will alter the case 2. To whom the Heir of the Marriage could be served whether to the Husband or to the Wife 3. Hoc supposito that the Husband be Fiar whether or not the foresaid Contract whereby she puts the Husband and Heirs of the Marriage in Fee will be interpret in Law prejudical to the former TailÈie as a wronging thereof Altho the Husband was expresly obliged to assume the Name and Arms of the Family which compleats the design of all such TailÈies And whether the Contract being in Minority will be reduceible upon that ground 4. Altho it might be reduceible as debording from the first TailÈie by making him and his Heirs absolute Fiar yet if it may not stand in so far as concerns the Husband and the Heirs of his Body and be only reduceible in swa far as it alters and debords from the other Branches of the TailÈie TailÈie altered A Minor having contrare to the Clause irritant contained in his Fathers TailÈie altered the Succession and being Infeft upon the Resignation If the said last Right should be reduced Vide Homologation Quaest 2da in litera H. Quaeritur What way shall the Contraveener return to the former Right And whether by the Decreet reductive the former Right will revive as if the posterior had never been Or if the said person upon a Bill to the Lords must have a warrand to the Director of the Chancery for a New Seasin Seing by the Resignation and Seasin following thereupon there was de facto a Disscasin quod factum est infectum fieri nequit Countess of Buccleugh Teinds A Person having Right both to Lands and Teinds disponeth the Lands without mention or exception of Teinds Quaeritur If the Teinds be disponed Ratio Dubitandi That the Right of Teinds is an inferior interest and upon the matter a Servitude and burden upon the Lands and is extinguished confusione consolidatione as soon as it is in the Person of the Heretor as in the case of Servitudes Right of Annualrents c. Ennerpeffer and Bonshuw A Person having acquired by Infeftment a Right to the Teinds of his own Lands Quaeritur If the Teinds be confounded with the Right of the Stock that the Lands being thereafter disponed or comprysed without mention of Teinds The Buyer or compryser will have Right to the same as in the case of a Right of Annualrent Quaeritur If a Person having a Right to Lands cum decimis inclusis whether in that case the Buyer or compryser without mention of the Teinds will have Right to the same Seing the Brieve bears only a warrand to Enquire de Quibus terris annuis Reditibus the Defunct died vestitus without mention of Teinds Quaeritur What way a Person being only Infeft in Teinds his Heir may be served special Heir to him in the same When Teinds are in Non-entry Quaeritur If the Superior will have Right to the haill profits before Declarator Seing Teinds are not retoured and there is neither an old nor new Extent of the same Teind of Fish BOats for taking of fish lying upon the shoar in one parish and going thence and returning thither for taking and unloading but belonging to Persons dwelling in another neighbouring Parish Quaeritur If the Teind of the fish should belong to the Minister of the Parish where they are taken or where the Owners and fishers dwell Proving the Tenor. IF a Comprysing may be made up by proving the Tenor Answer It is thought not In respect By the act of Parliament the Tenor of Letters of Horning and Executions cannot be proven and there is Eadem Ratio as to comprysings And a comprysing is not of the nature of Scripta Instrumenta quae possunt refici being both of the nature of Executions and of a Decreet of the Messenger as Sheriff in that part And neither Executions of Messengers nor Decreets can be made up by proving the Tenor And it is not enough that Witnesses may remember and be positive that there was a Comprysing seing they cannot remember at least ought not to be trusted whether the comprysing be formal which being Juris they can neither be Judges nor Witnesses thereto Quaeritur If a Decreet for proving the Tenor can satisfy the Production in an Improbation Answer It is thought it should not no more than a Transumpt seing otherways the indirect manner may be cut off which ariseth upon the comparing of hand Write and other Circumstances from the Principal which is not competent when Extracts only of such Writs are produced And the Style that such Decreets should make alse great faith as if the Writs were produced is to be understood Civiliter viz. Except in causa falsi If Sentences or Acts of Court being lost the Tenor may be proven If Executions of Summons of Interruption being lost may be made up by proving the Tenor after the decease of the Messenger It is thought that they cannot Seing by the act of Parliament the Tenor of Letters of Horning and Executions cannot be proven And there is Eadem Ratio as to other executions made by Messengers which appears to be that viz That they are Servi publici and by the Law only trusted and authorized as to such acts and their relation of the same If the Tenor of Bonds may be proven Answer There is a difference betwixt Bonds and other Writs in respect Bonds are granted to the effect they may be satisfyed and retired upon satisfaction and Debitors think themselves secure when they retire and destroy their Bonds And therefore when a Bond cannot be produced Instrumentum penes Debitorem or which cannot be shown Praesumitur Liberatum unless there be a clear Evidence that they could not be satisfyed as that the term of Payment was not come or such like and Casus amissionis be positively libelled and proven as incendii rapinae or the like If a Comprysing may be made up by proving the Tenor Answer It is thought not for the Reasons foresaid Viz. That it is both an Execution and Sentence and the Tenor is so long when it is of so many Baronies and it contains so many Essential Formalities and Acts of Execution and the Witnesses to many several Executions that no person can declare that the Tenor libelled is exactly the true Tenor and Comprysings are of that nature that they may be satisfied and are deduced to the end they may be satisfied Lauderdale Decreets for proving the Tenor. THE Tenor of a Writ being made up Quaeritur If it will satisfy the Production in an Improbation The Granter or his Representatives being called to the making up of the Tenor and Compearing Ratio Dubitandi That as to a Third Party who has interest to question the Writ being a Creditor and having Comprised before the Decreet for proving and there being a prior comprysing upon the said bond there is Eadem Ratio as in Extracts Seing the means of Improbation in the
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
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
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