Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâ—ri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâ—do to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ— is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ— whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ— and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâ—phan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a â—aked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or burrow-Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
Signet at the Instance of umquhil Mr. William Cunninghame continued in Oseburn after his decease without transferring for rectifying or rescinding a minute of Disposition of the Lands of Ballindalloch by Mr. William to Buchannan put in the hands of Mr. David Buchannan who gave his Ticket that the same should be keeped until it were perfeited according to Equity and Justice and Deponed that the Point to be rectified was only the warrandice which in the Minute was absolute upon which Bills the then Judges ordained the Parties to submit who accordingly submitted to four Friends and two Overs-men who were to report February 10. 1653. Which Oversmen did unwarrantably report after the expyring of the said Reference upon the 19. of February to Buchannans great prejudice contrair to Justice in so far as they ordained him to pay Oseburn sixteen years Purchase for the price of the Lands without Production or Debating of the Parties Rights or calling or hearing the Arbiters and with warrandice from Oseburn and his Goodfathers Fact and Deed only albeit the Lands were insecure holden Ward and lying in the Highlands And found the Rental of the Lands to be five thousand merks yearly without distinguishing between Stock and Teind though the Testimony of the Witnesses proves not above three thousand merks beside the Teind of which Lands Oseburn nor his Good-father had neither Title nor Possession of Buchanbeg Buchanmore and Ballochroon which are parts of Ballandoloch whereunto the Judges did unjustly interpone their authority superceeding twenty thousand merks until the Right of Buchanbeg Buchanmore and Ballachroon were discussed and whereas the Decreet bears Buchannan to have consented he denyed the same neither was there any minut of Process taken upon the day of his alleadged consent but by an Ordinance of the Judges half a year thereafter made upon their memory which cannot prove against him not being subscribed by him at least he might have resiled re integra before extracting the Decreet as he did The Defender answered that whatever was the ground of the Processes yet there was a Submission subscribed by both Parties and a Report by the Oversmen conform which is express contrair to all that is alleadged and is sufficient and full Probation Arbiters having so great Trust. And the Decreet beareth the Report made upon the 9. of February And albeit the minuts of Process were wanting or contrary nihil est because the Clerk being publicus proto notarius his solemn Instruments make full Probation and the minuts are but the notes taken by him for remembrance till the full Instrument be compleated against which Parties may object at Extracting as not conform to the Warrands but not thereafter otherwayes the Clerks by altering or losing the minuts might destroy all Decreets which are the greatest Securities of the Kingdom The Report also bears Inspection of the Parties Rights and considâ—ration thereof and of the Debates and Informations given in by either 〈◊〉 in write And if Buchannan saw not Oseburns Rights it was his fault that called not for them out of the Overs-mens hands where they long lay being expired Appryzings and Infeftments against Glengarnock the ancient Proprietar and against the Lairds of Buchannan themselves so that the Report being a Decreet Arbitral and Confirmed by the Judges and consented to by Parties is most solemn And as to the Consent it was Judicial and Palpable by joyning hands and needed no Subscription it be-being most ordinary that Decreets bear Consent of Parties especially when the Consent quadrateth with and is conform to a Process as the compearances of Parties whereby Decreets became irreduceable accepting of Offices of Tutory or Curatory and so if Buchannan had appeared and said for fourty thousand pound non faciam vim but as for the twenty thousand merks the Right of these Lands would be first cleared It would have been an unquestionable consent albeit contrary or extrinsick Acts require Subscription and ex abundanti have the same yet they need not seeing publica scriptura by the Instrument Judicial of the Clerks of Supream Court is more Solemn than a private Write by Parties Subscription and albeit de recenti at the same time when consents or offers are proposed Parties may resile yet ex intervallo they cannot For there is only locus penitentiae in Dispositions or Tacks of Lands where Writ is requisit not only as an Evidence but as a solemnity accomplishing the Right But in other Pactions and Promises where Write is not essential there is no place therefor The Lords having considered the Decreet and whole Warrands thereof Reduced and turned the same in a Libel ordained O seburn to proceed upon the two Supplications on which the Decreet was pronounced and continued his Possession till the close of the next Session for they found beside many informalities the sentence and Report of the Overs-men to have been after expyring of the Reference by the Warrand thereof subscribed with their hands And as to the Consent they found by Signature of Process under all the then Judges hands that there was no minut of the said Consent at the time it was alleadged to have been but half a year thereafter made up of their memories Upon which two Points mainly they Reduced without Discussing the other Alleadgences neither had they respect to Buchannans Homologations of the Arbiters Sentences by taking out Diligences conform and adducing Witnesses to prove the Rental nor by acquiescing in his Bills to the price because there was alwayes some qualities in his Consent Laird of Lamertoun contra Earl of Levin and Alexander Kennedy Eodem die THE Laird of Lamertoun having wakened an Improbation against Alexander Kennedy and the Earl of Levin for improving of several Bonds exhibite by the said Alexander Kennedy and made use of by the Earl of Levin Lamertoun craved that the Earl of Levin might bide by the Bonds seeing he made use thereof the Earl offered to abide by them qualificateâ— viz. that he made use of them as believing they were true Bonds and that he was not accessory to any falshood or forgery thereof It was alleadged he ought to bide by them simply for such qualities were contrair to the Act of Parliament declaring users of false Writs and abiders by them to be accounted as accessory thereto many of the Lords were of opinion that he should abide by them simply but that he might protest under the foresaid quality in respect it was not proper to the Lords to consider the consequence of his biding by the Bonds which was Criminal yet alterius fori yet it was carried that he might bide by them qualificate and therefore he was ordained to give it in in Write that the Lords may consider how far they will allow it Mitchels contra Iohn Hutchison Iuly 24. 1661. JEAN and Marion Mitchels having â—pursued Iohn Hutchison in Anno 1659. for Reduction of a Decreet obtained by him against them as Heirs to their Father upon Minority and Lesion and
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
for the price of a House The Defender alleadged absolvitor because he had bona fide made Compt Reckoning and Payment to Mr. Alexander Home Assigny Constitute by the Rebel before any Citation or Diligence done against him to put him in mala fide so to do and produced the Assignies discharg bearing that the Defender had made Compt with the Assignyâ— and that there remains only the Sum of 1100. merks which he acknowledgeds to have received and therefore discharged him of the whole The Pursuers alleadged the discharge not bearing Payment of the whole Sum but only of 1100. merks nor yet bearingâ— that the Instructions were given up to the Assigny cannot exoner the Defender but he must yet Re-produce the Accompt and Instructions thereof likeas he has produced a great part thereof in this Process because no discharge could be relevant to liberat this Defender but only payment made bona fide The Lords found the Discharge sufficient to liberat the Defender mainly because albeit the Discharge mentions not the Instructions to be given up yet the Defenders was not oblidged to preserve the same or be at the hazard thereof The Pursuer further offered them to prove that the Defender had yet in his hand the accompt and whole Instructions and therefore ought to repreduce the same that the Lords might consider whether the Rebells Assignyes had allowed any thing to him which ought not to be allowed and did belong to the Donatar which the Lords sustained Iames Dewar contra Countess of Murray December 19. 1661. JAmes Dewar pursues the Countess of Murray for Ejecting him out of certain Lands whereof he had Tack and Spuilzing from him certain Goods The Defender alleadged absolvitor because there was a Clause in the Pursuers Tackâ— providing that if two Years Dutie run together the Tack should expire and in that Case he Renunced the Tack and thereafter the Pursuer having Compted with the Defenders Chamberlain by Writ produced he acknowledged himself Debitor in such Sums and such Duties for bygone Years with this Provision that if he Failzied in payment thereof my Lady should at her own hand intromet with the Corns and others lybelled which were disponed to her for satisfaction of the Rent and likewise it should be leisum to my Lady to set the Lands to any other Tenent thereafter at the Term of Mertimess and to Dispose thereof at her pleasure The Pursuer answered non relevat unlesse by Authority of a Judge the Failzie had been Declared The Defender answered maxime relevat because Declarators are only necessar in Reversions Back-tacks or Infeftments being of great Importance but not in ordinar Tacks betwixt Master and Tenent The Lords found the Defense relevant founded upon the Accompt and Bond in respect of the Tenor thereof as a foresaid but would not have so done upon the Clause of the Tack unless it had born expresly a power to enter to the Possession at any time brevi manu The Pursuer further Replyed That the Defense ought to be repelled because he offered to prove before the Ejection he had payed a great part and offered the rest The Lords having considered the Instructions of Offence produced found that it was not Speciall bearing any Sum of money produced or offered and that there was no Consignation following thereupon and therefore sustained the Defense notwithstanding the Reply Earl of Rothes contra Countess of Buckâ—leuch December 20. 1661 THE Earle of Rothes as Donatar to the Waird of the Countess of Buckcleugh and the said Countess for her self pursued the Tutors of Buckcleugh for Exibition of the Charter Chist and heal Evidences and Writs therein that the Donatar may have Inspection thereof to the effect he may knowâ— what Lands are Waird The Tutors Compeared and disclaimed the Pursuit at the Pupils Instance and alleadged First No Process till the Countess were called 2dly The Lybel is not Relevant to conclude Inspection of all Writs whereunto the Donator can pretend no interest 3dly Non relevat for any Writs because no body is oblidged edere Instrumenta contra se. 4thly If there were any ground for this Pursuit the Lands holden in Waird behoved to be particularly Lybelled The Lords Repelled the first Defense inrespect the Countess was in processu and found the second Defense to restrict the Inspection only to the Countess and her Sister and Father there Retours and Warrants thereof and no more unlesse the Pursuer condescend particularly of other Waird Lands and appointed one of their number to have Inspection of the Charter Chist who should show the the Procutators of either Partie such of the Writs as they found were Waird Hewâ— Montgomerie contra Lord Kirkcudbright Eodem die HEw Montgomerie of Grainshaw and Meclellane his Spouse pursues the Lady Kirkcudbright for Ejecting them out of the five pound Land of Overlaw and craved Re-possession and payment of the Maills and Duties intrometted with The Defender alleadged no Process because it is not alleadged that the Pursuers was in Natural Possession for only the Natural Possessors can have Decreet of Ejection because if there be no deed of violence Lybelled but only Intrometting with the Maills and Duties Ejection is not competent nor any Violent Profits but only Action for Maills and Duties against the Tennents or Intrometters The Pursuers answered That Ejection may be Competent though the Pursuer was not in Natural Possession when a Tennent is Ejected and a Stranger without Interest enters in the Natural Possession albeit the Tennents should Collud or neglect the Heritor having but civil Possession by uplifting of Maills and Duties needs not warn the Ejecter but may crave to be Entered to the Natural Possession and the Violent Profits The Defender alleadged the Case is not here so unlesse it were alleadged the Tennents were cast out but the Defender may Defend the Right to the Maills and Duties upon a better Right then the Pursuer The Pursuer answered That he declared he craved only Re-possession to the ordinar Profits The Lords Ordained the Parties to Dispute their Rights to the Maills and Duties and Possession as in a Double Poynding and as if the Duties were yet in the Tennents hands The Defender alleadged further that she hath right to the Maills and Duties because she offered her to prove that the Pursuers Father in Law granted a Back-band oblidging himself and his Heirs to Re-dispone these Lands to Umquhile Robert Lord Kirkcudâ—right from whom the saids Lands were Appryzed to which Apprysing the Defender hath Right and thereby has Right to the Back-bond and that the Defenders Wife represents her Father as Heir or at least as Lucrative Successor after the Back-bond and so as he might thereupon have debarred the grant of the Back-bond so might the Pursuer as Representing him The Pursuer alleadged 1. Non Relevat because the said Back-bond is but a Personal Obligation and the Defender had thereupon no Real Right but only to the Superioritie because by discharges of the
instruct the Protestation The Lords Repelled the Defense in respect of the absence of the Register and the oldness of the Horning Achinbeck contra Mccleud Eodem die IN an Improbation at the Instance of the Laird of Achinbeck against Mccleud The Lords found that the Improbation behoved to be continued albeit the samine had an ordinar priviledge to pass upon six dayes for the first Summonds past of course periculo penitentis Acheson contra Earl of Errol Eodem die ACheson pursues the Earl of Errol as presenting his Father to pay a Debt wherein his Father was Cautioner for the Earl of Mar and for instructing thereof produced the Extract of a Bond Registrate by consent in the Books of Session The Defender alleadged no Processe against him because the Bond was not Registrat by any Procurator for his Father because he was Dead before the Registration and so cannot prove against him neither being a principal Writ Subscribed by his hand nor being a Decreet of Registration by consent of his Procurator nor upon Citation The Pursuer alleadged that it was an authentick Evident and bare expresly Sic subscribitur Errol and seing by Law and Custom the Pursuer was necessitat to leave the Principal at the Register when the Registrat the same and that the Registers are now lost without his fault The Lords refused to sustain the Extract against the Earl of Errol but yet would not put the Party to an Action of proving the Tenor but would receive Adminiâ—les to instruct that Earl was Cautioner and therefore ex officio ordained the other Subscribers of the Bond or any other person that could be adduced for instructing the Truth to be required ex officio Thomas Crawford contra Earl of Murray February 8. 1662. THomas Crawford as Executor Creditor Confirmed to Umquhil Robert Ingâ—is as Assigney by his Relict for satisfaction of her Contract of Marriage pursues the Earl of Murray for payment of the Sums Confirmed addebted by him to the said umquhil Robert The Defender alleadged compensation because he had Assignation to a Debt due by the said umquhil Robert which as it would have been relevant against Robert himself so must it be against his Executor The Pursuer replyed First non relevat unless the Assignation had been Intimat before the Confirmation but an Executor Creditor having done Diligence by Confirmation it is not in the power of any of the Defuncts Debitors by taking Assignation from any of his Creditors to prefer that Creditor to any other Creditor which is no ways legittimus modus preferendi But the Creditors must be preferred only according to their Diligence Secondly This Pursuit being for Implement of the Relicts Contract of Marriage and pursued to their behove hath by our Law and Custome preference to all other personal Creditors though having done more Diligence The Lords found either of these two Replys Relevant to elide the Defense albeit the Assignation was before any Pursuit moved upon the Pursuers Confirmation Lord Torphichan contra Eodem die THe Lord Torphichan and certain of his Feuars pursue a Reduction of a Decreet of the Sheriff whereby he set down Marches betwixt their Lands and others upon this Ground that he did not proceed by an Inquest conform to the Act of Parliament but by Witnesses Secondly That he as Superiour was not Called Thirdly That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters to be proven by Witnesses The Defenders answered the first Reason was not objected and the Defenders Compearance it was competent and omitted To the second the Superour could have no Detriment To the third that the setting down of March-stones being a palpable Fact might be proven by Witnesses whether done by the Parties themselves or by Friends chosen in their presence their being neither Decreet-arbitral nor Submission in Writ The Lords Repelled the Reasons in respect of the Answer and declared that if the Land fell in the Superiours hands by Recognition Non-entry or otherwise The Decreet should not prejudge him if he were not Called Ramsay of Torbanie contra Mcclellane February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension and Reduction of a Decreet against him at the Iâ—stanâ—e of Thomas Mcclellane in Anno 1658. Insists upon this Reason that he being pursued as Heir to his Father at the Instance of Thomas Mcclellane he proponed this Relevant Defense absolvitor because the Bond pursued upon was granted by his Father after he was Interdicted without consent of the Interdictors and so could not affect the Person Interdicted Heir albeit he had succeeded in his Estate The Defender answered that the said alleadgence was justly Repelled in respect of this relevant Reply that the Interdiction hath no effect as to Moveables and Personal Execution neither as to any other Lands then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat conform to the Act of Parliament ita est this Interdiction was published and Registrate only at Linlithgow and therefore if the Defender hath succeeded to any Lands not lying in Linlithgow Shire or if he hath medled with Heirship Moveable or be vitious Intromettor with his Fathers Moveables he is lyable for this Sum albeit after the Interdiction ita est he succeeded to Lands in the Stewartry of Kirkcudburgh and Moveables c. and therefore the Defense was justly Repelled The Lords found the Decreet just and therefore Repelled the Reasons of Suspension and Reduction Bells contra Wilkie February 12. 1662. GRissel and Bells raise a Reduction against Iames Wilkie of a Decreet obtained at his Instance against them in Anno 1659. whereby the said Iames Wilkie being Executor Confirmed to his Mother who was one of the Sisters and Executors of umquhil Patrick Bell their Brother in which Confirmation the said Iames gave up the third of the said Patricks Goods and thereupon obtained Decreet against these Pursuers as the two surviving Executors to pay to the said Iames his Mothers third Part of her Brothers Means The Reason of Reduction was that the Decreet was unjust and contrair to the Law and Custom of this Kingdom whereby there is no right of Representation in Moveables as in Heretage neither doth the Confirmation of the Executors establish in the Executors a compleat Right untill the Testament be execute either by obtaining payment or Decreet and if the Executor die before Execution the Right ceases and is not Transmitted to the Executors Executor but remains in bonis defuncti of the first Defunct and therefore Executors ad non Executa must be confirmed to the first Defunct which being a constant and unquestionable custome one of the three Executors deceasing before Executing the Testament her Right fully ceases and both the Office of Executrie and Benefit accresâ—es to the surviving Sisters as if the deceased Sister had never been Confirmed Executrix The Defender in the Reduction Answered That this Reason was most justly Repelled because albeit it be true
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
Party willed not nor consented not to the Right and if by such Interruptions Parties got wrong it was their own fault who did not either declare their Right or insist in a molestation debito tempore or use mutual Interruptions but here it was considered that Possession before the year 1610. would be equivalent to Immemorial Possession albeit the Witnesses were not positive upon 20. Years Possession before in respect the Years were 50. Years since Children of Wolmet contra Dowglas and Cuningham November 20. 1662. IN a Persuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet intrometted with by the said Iean Dowglas Lady Wolmet in her Viduity by vertue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions it was alleadged for the Defender First absolvitor because the said Iean had right to the said Profit of the said Coal ever since her Husbands Death by vertue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet to Iames Loch wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet and the said Iean his Spouse for the Annualrent of the Money It was replyed for the Pursuer that the foresaid Back-tack was taken by Wolmet stante matrimonio and so was donatio inter uirum uxorem null in it self nisi morte confirmetur and was confirmed by Wolmets Death but Revocked by the Pursuers Tack granted to his Children after the said Back-tack It was answered for the Pursuers that the reply ought to be repelled because the Back-tack was no Donation but a permutation in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet which Infeftment she renounced in favours of Iames Loch at the taking of the Wodset and in lieu thereof she got this Back-tack which therefore can be no Donation which must be graâ—uâ—tus without a cause onerous It was replyed by the Pursuers that the duply is not relevant for albeit it be not a pure Donation yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude and a Donation and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient it holds in it and it would be easie to allude the intent of that good Law if Donations contrived under the way of permutation without any real equalitie were allowable It was answered for the Defender that the duply stands relevant and the superplus of a permutation cannot be called a Donation more then the benefit of an advantagious Vendition it is true that if the Donation of the Back-tack had been ex intervallo after the Ladies Renounciation it would have been vincus Contractus but two distinct Donations or if the matter exchanged had been aliquid ejusdem specei as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation or if the Lady had received a notable excess above the half yea above the third of what she quat it might have been revocable by her Husband she being reponed to her first Condition by her Contract of Marriage but here there is no such exorbitant excess she having quat a certain Land Rent for the profit of a Coal which is most uncertain for the hail Land Rent would not pay the Back-tack and it is now Wodset and likewise she is personally lyable for the Back-tack Dutie The Lords repelled the Defense and Duply in respect of the Reply and Triply and found the Excess so considerable in this case that it was as a Donation and was revocked by the Childrens Tack but found that before the Defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius by her Contract of Marriage It was further alleadged for the Defender absolvitor because that albeit her Right by the Back-tack were revocked by the Childrens Tack yet she is bona fide possessor fecit fructus consumptos suos according to the Law of this Kingdom and of most of other Nations necessarily introduced for the good and quiet of the People because as to and profits they spend as they have and therefore what they spend bona fide by a colourable Title they are secured in that albeit their Title be taken away yet they shall not be called in question for what they have injoyed bona fide before Sentence or Citation It was answered for the Pursuers that the Defense was not relevant in that case where the Question is not of industrial fruit but of natural fruit such as Coal Secondly it is not relevant unless it were cum titulo not ipso jure null but here the Defenders Title being a Donation betwixt Man and Wife is by the Civil Law which herein we follow null in se nisi morte confirmetur Thirdly there must be bona fides which is not here because it is instructed by a minute of a Contract produced within five moneths before the Childrens Tack that the Lady consented to the providing of the Children by the profit of the Coal and she cannot be presumed ignorant of so Domestick an affair in favour of her own Children done by her Husband and she hath given up an Article in her accompt of the expense of Registrating the Childrens Tack by her self and so she must be presumed to have possessed as protutrix for her Children and not to Defraud or Exclude them It was answered for the Defender that the defense stands yet relevant and the Law makes no difference betwixt Industrial and Natural Fruits he who possesses Lands bona fide is no more comptable for the Grass that growes of it self nor for the Corn that he labours for 4. And Coal is an industrial Fruit having as much pains and expense as Corns and other industrial Fruit and more uncertainty as to the Title albeit be valid yet sufficit coloratus velâ—putativus titulus and albeit in the antient Roman Law such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law per oraâ—ionem Antonij they are declared valid in themselves unless they be revocked and therefore are not null but Anullantur medio facto and there are many nullities which may consist with a colourable Title ad hunc affectum lucrari Fructus consumptus as if the nulitie be not ex defectu substantialium but by defect of some solemnity as the not Registration of a Seasine will not make it so null but that possessor bona fide thereby will imploy the Fruits but if it want tradition of the symble it will be null in se but here such Donations have all there essentials but they are only anullable by a subsequent fact and as to the Evidence that the Lady was in mala fide they
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
Poynding against the Pursuer and the Bairns but in regard of so much ground in the matter they declared they would not sustain the Passive Title to make him Successor universal but only as to the just Price and the Cause Onerous Grahame of Blackwood contra Brouns Ianuary 7. 1665. JOhn and William Brouns having Appryzed certain Lands and William Grahame having Appryzed the same within a year after pursues an Accompt and Reckoning against the first Appryzer upon the last Act of Parliament betwixt Debitor and Creditor and craves to come in pari passu with the first Appryzer not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer since the said Act of Parliament but also for these Duties that were Intrometted with before the said Act and that because the Act bears expresly That such Appryzing shall come in pari passu as if there had been one Appryzing led for both It was answered for the first Appryzer that what he did uplift bona fide before any Process intented against him at this Pursuers instance he cannot pay back a part thereof to the Pursuer because he is bona fide Possessor and because the Act of Parliament bears That such Appryzings shall come in pari passu which being in the future must be understood to be from their intenting of Process at least from the date of the Act but not from the beginning The Lords having considered the Tenor of the Act of Parliament found that such Appryzings should only come in pari passu from the date of the Act but that the bygones uplifted by the first Appryzer before the Act should be accompted to him in his Sum but no part thereof repeited to the second Appryzer and found that the Sums Appryzed for Principal and Annualrent of both Parties should be restricted as they were the time of the Act of Parliament in one total Sum and the Rent to be received from that time proportionally to the total Sums and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour and the charges of the Appryzing without compelling the second Appryzer to pay him the same Normand Lesly contra Gilbert Gray Ianuary 10. 1665. NOrmand Lesly charges Gilbert Gray Provost in Aberdeen to pay 2000 merk for which he was Cautioner for William Gray He Suspends and alleadges that the Charger had gotten an Assignation from the said William Gray to an Bond granted by the Earl of Errol to him and therefore craved that the Charger might be decerned to transfer that Assignation to him being given for the security of the same Sum. It was answered that the Charger was only oblidged to give a discharge to his Cautioner and not an Assignation of the Bond it self and much less of any security ex post facto he had gotten therefore The Lords declared they would not give the Charger Process till he Assigned the Bond and all security gotten therefore to the Cautioner William Reid contra John Reid Eodem die WIlliam Reid pursues Iohn Reid as his Tutor to deliver all Writs belonging to the Pupils Father or which were in his Custody and Possession quovis modo Intrometted with by the Tutor Who alleadged the Pupil could have no interest in any Writs but these which belonged to his Father The Lords found that Pupil had interest to call for Exhibition and Delivery of all Writs that were in his Fathers Possession quovis modo and ordained the Tutor to exhibit all but prejudice to any Partie having interest to crave the delivery of these Writs if they belonged to them Campbel contra Mary Bryson Eodem die GEorge Campbel having right by Adjudication to the Reversion of a Wodset of some of the Lands of Newlistoun Wodset by the Laird of Newlistoun to Andrew Bryson Baillie of Edinburgh whereupon he was publickly Infeft and thereafter did dispone the same to his Daughter Marry Bryson and she was Infeft holden of her Father which Disposition contained a power to the Father to dispone on the Sum in the Wodset Right during his Lifetime without her Consent after all Andrew Bryson obtained a Confirmation of the foresaid Wodset with Addition of 16. aikers of Land more for the same Sum which was conceived in favours of himself and the Heirs of the Marriage whereupon he was Infeft The said George having used an Order of Redemption craved Declarator Compearance is made for the said Mary who craved the said Sum to be delivered up to her It was alleadged by the Pursuer that she could not have up the Sum unless she were Infeft as Heir to her Father both in the first and last Wodset and resigned the same and so liberat the Land of the Burthen thereof for albeit she was Infeft proprio nomine yet it was but base holden of her Father so that the Superiority remained with her Father and she behoved to be Infeft as Heir to him and renunce the same 2. The Corroborative Wodset stood in her Fathers Person who by her Disposition had a Power to dispose of the first Wodset and so had altered the Fee thereof to himself and his Heirs It was answered that the second Wodset was taken when Maries mother was dead and she the only child of that Marriage and so was alike as if her name had been expressed 2. The Declarator it self will sufficiently secure the Redeemer albeit there were no Resignation 3dly The second Wodset is but accessory to the first so that the said Mary having power to renunce the first Wodset proprio nomine the second may be declared to be extinct in consequence and further offered Caution if need were to warrand the Redeemer The Lords found the Lands to be Redeemed but ordained the Money not to be given up untill the said Mary had Infeft her self as Heir to her Father and Resigned for they thought the Redeemer ought to put upon no hazard of repetition or of the danger of the Infeftment unrenunced seing it was the ordinar Course to be Infeft and to renunce Magaret Arnot contra Mr. Robert Arnot Ianuary 11. 1665. MArgaret Arnot pursues a Reduction of a Decreet of Exoneration obtained by William Arnot her Uncle and Executor to her Father It was alleadged for Mr. Robert Arnot Son and Successor to the said William that all Parties having Interest were not called viz The Creditors and Legatars who were concerned in the event of the Reduction for if there Sums and Discharges were not allowed according to the Exoneration The Defender behoved to return upon them for payment and therefore they ought to be called to defend their Interest The Lords repelled the Defense and found no necessity to call the Creditors and Legatars but that the Defender might intimat the Plea to them Neilson and Calender contra Ianuary 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons on which there was an Inhibition used It
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ— the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ— Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâ—erent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â— yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ— because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole
is preferable to the Rebels base Infeftment It was answered that the King or his Donatar needed no possession nor can be prejudged for want of Diligence The Lords found the Creditors alleadgeance relevant Iack contra Mowat Eodem die THE Lords found that Iack having obtained Decreet as Assigney by his Father it was relevant for the Debitor to alleadge and prove by the Assigneys Oath that the Assignation was without a cause onerous and by the Cedents Oath that the Debt was payed before Intimation Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666. IN the Cause debated yesterday betwixt Sir Henrie Hoom and Sir Alexander Hoom. It was further alleadged for Sir Alexander Hoom that the Rebel had not only five years possession but was Infeft by an Infeftment holden of his Father which was cled with Possession before the Appryzers charge against the Superior in so far as the Infeftment bore a reservation of the Fathers Liferent and so the Fathers Possession was the Rebells Possession and was sufficient to validat the base Infeftment seing there could be no other Possession attained during his Fathers lifetime or at least there was reserved to the Father a yearly Rent and the Rebel gave his Father a Warrand in Writ to continue his Possession of such of the Lands for the same The Lords ordained the Donatar to condescend whether the Rebells Infeftment proceeded upon his Contract of Marriage And he declaring that it was by a distinct Right thereafter The Lords found the Possession of the Father not relevant it being betwixt Conjunct Persons privat and suspect For they thought if possession by such Reservation betwixt Father and Son were sufficient the Creditors would hardly be secure Dumbar contra Lord Duffus Eodem die THE Lord Duffus having obtained a Decreet of removing against Dumbar his Tennent and having execute the same by Letters of Possession The Tennents raises Suspension and Reduction of the Decreet and a Summons of Ejection the Reason of Reduction was that the Sheriff had done wrong in repelling and not expressing in the Decreet a relevant Defense 2dly That the Tennent could not be decerned to remove because he was already removed irregularly by Ejection and ought not to be put to defend in the removing till he were repossest spoliatus ante omnia est restituendus which he instructed by an Instrument taken in the hand of the Clerk of Court and where it was replyed before the Sheriff that he had not found Caution for the violent Profits He answered that he needed not seing the Pursuer himself was in possession by the Ejection It was answered that the Lord Duffus offered him to prove that all he did was to put in some Corns and Plenishing in an ouâ— house long after the warning of the Tennent that had taken the Roum and that he continued to possesse all the rest of the house and the whole Land by his Cattel till he was Legally removed and neither the Family nor Goods of the new Tennent came in till then It was answered that the alleadgeance was contrair to the Tennents Lybel of Ejection bearing that he was dispossest both from the house and Lands The Lords considering that the Tennents was only positive in Ejection from the House and had once acknowledged that he was not Ejected from the Land they Assoâ—lzed from the Reduction of the Decreet of Removing but they sustained the Action of Ejection and Repelled the Defenses as contrair to the Lybell Reserving to themselves the modification of the violent profits and the other party to debate whether after the Decreet of Removing the Tennent should have re-possession or only the profits or damnages George Tailzor contra Iames Kniter Junâ— 15. 1666. GEorge Tailzor having Appryzed some Lands in Perth set a Tack of a part of it to Iames Kniter who thereafter Appryzed the same Tailzor now pursues a Removing against Kniter who alleadged absolvitor because he had Appryzed the Tenement within year and day of the Pursuer and so had Conjunct Right with him It was answered that he could not invert his Masters Possession having taken Tack from him The Defender answered it was no inversion seing the Pursuer by Act of Parliament had Right to a part but not to the whole and the Defender did not take Assignation to any new Debt but to an old Debt due to his Father The Lords sustained the Defense he offering the expenses of the Composition and Appryzing to the first Appryzer conform to the Act of Parliament Alexander Stevinson contra Laird of Hermishills Eodem die ALexander Stevinson as Assigney by his Father pursues Hermishills for payment of a Bond who alleadged absolvitor because the Defender as Heir to his Father had right to a Bond due by the Pursuers Father before the Assignation after which the Assignation was a Deed infraudem Creditorum and so null It was answered non relevat unless the Cedent had been Bankrupt or at least insolvendâ— The Lords Repelled the Defense in respect of the Answer The Defender furder alleadged Compensation upon the said Bond which was relevantâ— against the Pursuer both as Heir to and as Assigney by his Father It was answered non relevat against the Pursuer as Executor but for his fourth part being one of four Executors 2dly The Defenders Father was Tutor to the Pursuer nondum reddidit rationes The Lords found that Compensation being equivalent to a discharge taking away the Debt ipso facto it might be proponed against any of the Executors in solidum but in regard the Tutors accompts were depending the Lords sisted his Process till he Tutors Compts proceeded Sir Robert Sinclar contra Laird of Houstoun Eodem die SIr Robert Sinclar pursues a Poynding of the Ground of the Lands of Leni upon an old Annualrent of 20. merks Constitute above a 100. years agoe Houstoun alleadged absolvitor First Because he brooked these Lands past Prescription peaceably without any pursuit upon this Annualrent 2dly Because this Annualrent was base and never yet cled with Possession and his Infeftment was publick It was answered to both that the Pursuer produced a Decreet of Poynding the Ground in Anno 1608. Since which the Pursuers Minority being deduced it is not 40. years Likeas there is produced a Precept of Poynding for the said Annualrent It was answered that the Decreet in Anno 1608. was only against the Tennents and Possessors and so is null the â—eretor not being called It was answered First That albeit the Decreet had been defective for not calling the Master yet it was sufficient to interrupt Prescription 2dly It was sufficient to give possession and to validat a base Infeftment by a civil possession for as natural possession by the Tennents payment would have been sufficient though without their Masters knowledge or consent So a Decreet yea a citation against them is sufficient for a possession as being equivalent to a natural possession and albeit the Proprietar could not be
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâ—kitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ— and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ— by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ— and the distress occurring against the
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâ—amento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâ—io mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
Sub-tennent to the principal Tennent The Lords Debate the same amongst themselves some being of opinion that the Sub-tennents payment bona fide before the Term was sufficient because he was only obliged to the principal Tennent and he might have a Tack for a less Duty then he or for an elusory Duty which if he payed and were Discharged he was not conveenable and oft times the Sub-tennents Term was before the principal Tennents Yet the Lords found that payment made bona fide by the Sub-tennent to the principal Tennent was not Relevant and that because the Master of the Ground has Action not only against the Tennent but also against the Sub-tennent or any who enjoyed the Fruits of his Ground and may conveen them personally for his Rent as well as really he has an Hypothick in the Fruits neither can the Sub-tennent prejudge the Master of the Ground of that Obligation and Action by paying before the Term otherways he might pay the whole Terms of the Tack at the very entry thereof and so Evacuat the Heretors Interest as to the Sub-tennent yeaâ— though the Sub-tennents Tack-duty were less then the principal Tennents it would not Exclude the Heretor pursuing him as Possessor for the whole but only give him Regress for Warrandice against the principal Tacks-man but the Term being come if the Heretor Arrested nor pursued not the Sub-tacksman he might impute it to himself and the Sub-tacks-man might justly presume that the principal Tacks-man had payed and so might pay him bona fide Countess of Hume contra Tennents of Alcambus and Mr. Rodger Hoge Eodem die THe Countess of Hume being provided by her Contract of Marriage to the Lands of Alcambus Pyperlaw and Windilaw extended to 24 Husband-Lands she gets a Charter upon her Contract bearing For Implement thereof to Dispone to her the Lands and Barony of Alcambus c. with a Seasine taken at Alcambus She thereupon pursues the Tennents Compearance is made for Mr. Roger Hog and other Creditors who bought these Lands from Wauchtoun who had bought them from the Earl of Hume and alleadged Absolvitor from the Mails and Duties of the Miln of Alcambus because my Lady by her Contract of Marriage was not provided to the Miln neither was she Infeft therein per expressum and Milns do not pass as Pertinents without a special Infeftment 2ly Absolvitor for the Rents of Pyperlaw and Windilaw because my Ladies Seasineâ— bears Only Inâ—eftment in the Lands of Alcambus and mentions not these Lands which are particularly in the Contract The Pursuer answered to the first That by her Charter she was Infeft in the Lands of Alcambus with the Milns with other Lands mentioned therein c. 2ly That Alcambus bore by her Charter to be a Barony which is nomen universitatis and carries Milns albeit not exprest To the second It is offered to be proven that Alcambus is the common known Designation and is commonly known to comprehend Pyperlaw and Windilaw as Parts and Pertinents thereof and that they are all holden of one Superiour and lyes contigue so that they are naturally unite and without any further union in a Barony or Tenement and a Seasine upon any place of them serves for all It was answered for the Defender to the first Point That Alcambus was not a Barony neither doth the Designation thereof by the Earl of Hume make it a Barony unless it were instructed 2ly The adding of Milns in the Charter if the Lady had not Right thereto by the Contract is a Donation by a Husband and is Revocked by his Disposition of the Lands of Alcambus and Miln thereof to the Laird of Wauchtoun the Defenders Author The Pursuer answered that the Charter was but an Explication of the meaning of the Parties that by the Contract the intention was to Dispone the Miln especially seing the Miln hath no Sucken but these Husband-Lands of Alcambus which are Disponed without any Restâ—iction of the Multure so that the Miln would be of little consequence without the Thirâ—e The Lords having compared the Contract and Charter found that by the Contract the Lady could not have Right to the Miln 〈◊〉 she would be free of the Multures and found that the Charter did not only bear for Implement of the Contract but also for love and favour and so found the Adjection of the Miln to be a donation Revocked Nor had they respect to the Designation of the Lands as a Barony but they found it Relevanâ— if the Lady should â—rove that it was a Barony to carry the Right of the Miâ—n or that in my Lords Infeftments there was no express menâ—â—â—n of the Miln but that my Lady had them in the same Terms my Lord had them They found also that Reply Relevant that Alcambus was the Name of the whole Lands to extend the Sea sine to the Lands of Pypâ—rlaw and Windilaw though not named and that they might be yet Parts and Pertinents of the Tenement under one Common Name Andrew Smeatoun contra Tabbert Feb. 7. 1667. ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate pursues a Poinding of the Ground and produces his own Infeftment and his Authors but not the original Infeftment of the Annualrent It was alleadged no Process until the original Infeftment were produced constituting the Annualrent especially seing the Pursuit is for all bygones since the date of the Authors Infeftment so that neither the Pursuer nor his immediat Author hath been in Possession 2ly If need beis it was offered to be proven that before the Rights produced the Authors were denuded It was answered that the Pursuer hath produced sufficiently and that his Right was cled with Possession in the Person of his mediat Author before the years in question To the second this Pursuer hath the benefit of a possessory judgement by his Infeftment cled with Possession and is not obliged to Dispute whether his Author were denuded or not unless it were in a Reduction The Lords sustained the Pursuers Title unless the Defender produced a Right anterior thereto in whiâ—h case they ordained the Parties to be heard thereupon and so inclined not to exclude the Pursuer upon the alleadgeance of a possâ—ssory judgement but that Point came not fully to be debated It is certain that a possessory judgement is not relevant in favours of a Proprietar against an Annualrenter to put him to Reduce because an Annualrent is debitum fundi but whether an Annualrenter possessing seven years could exâ—â—ude a Proprietar until he Reduce had not been decided but in this case the Lords inclined to the Negative Mr. Alexander Foulis and Lord Collingtoun contra Tennents of Innertyle and La. Collingtoun Feb. 9. 1667. SIr Iames Foulis of Collingtoun being in treaty of Marriage with Dam Margaret Erskin Lady Tarbet She did dispone 36 Chalders of Victual of her Joynture in the North to a confident Person that she might make use thereof for the benefit of
of the second must approve both and the approbation is sufficient Warrand for him to intromet and the Auditors to compt with him The Lords Repelled the Defense upon the Act of Indemnity in respect of the foresaid Exception contained therein and likewise found that the Oath subjoyned to the second accompt could not exclude the Pursuer from insisting for the Defenders Fathers intromissions ommitted out of the first accompt and wherewith he Charged not himself but found that the Defender was secure by the Act of Indemniâ—y so far as he had charged himself with and compted and found that he was not obliged after so long a time to instruct his Commission or the Warrand of the Auditors that fitted his accompts but that the approbation was sufficient to astruct the same Lady Diana Maxwel contra Lord Burley and others Feb. 15. 1667. LAdy Diana Maxwel Lady Cranburn and other Executors confirmed to the Countess of Dirletoun pursued the Lord Burley as Representing his Father for payment of a Bond granted by his Father and others to the umquhil Earl of Dirletoun for the price of a great quantity of Victual and that upon these Grounds that the Pursuers are Executors surrogat to the Countess and have licence to pursue which Countess had an assignation from the Earl to his Houshold-stuff which bore this general Clause And to his Chattel and other Moveable-goods and Gear whatsomever under which generality this Bond is Comprehended being moveable and for Victual and so is a Chattel as the word is understood by the Law of England whereby all that is not by Infeftment of Fee is comprehended by the word Chattels and belong to the Executors as Laisses c. 2ly The Countess was nominat universal Legatrix in the Earls Testament and thereby has Right to this Moveable-bond 3ly As Relict she has Right to the half It was alleadged for the Defender no Process upon any of these Titles First Because the assignation cannot be extended to this Bond neither is the word Chattels to be Interpret according to the Law of England the assignation being made by a Stots-man and made in Scotland after the Scottish manner 2ly The Pursuers as Executors to the Countess cannot pursue upon the universal Legacy the Debitors of the Defunct but only the Defuncts Executorsâ— because this Bond is yet in bonis primi defuncti and must be Confirmed 3ly The Relict cannot pursue the Debitors for her half but at least she must call the Executors The Lords found both the last Alleadgences Relevant but as to the first before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels by the Law of Englâ—nd in respect it was notour to them that the Lord Dirletoun beìng a Servant of the Kings lived the most part of his time in England and in Scotland there is no use of the word Chattels Isobel Glen contra Iohn Hume Feb. 19. 1667. ISobel Glen as assigney by Mr. Edward Jameson having obtained Decreet against the umquhil Earl of Hume for certain by-run Stipends and thereupon having arrested in my Lord Whitekirks hands certain Sums due by him to the Earl of Hume She now pursues to make forthcoming Compearance is made for Iohn Hume who produces an assignation by the Earl of Hume to the sums due by Whitekirk and also produces a Gift of the Earls Liferent-Escheat and alleadges first No Process at the Arresters Instance because the Earl of Hume being dead the Debt must be first Establisht by a Decreet against one Representing him who must be called principaliter before the Person in whose hands the arrestment is made can be decerned to pay that which was the Defuncts 2ly Iohn Hume must be preferred as Donatar because the arrestment was laid on after the Earl of Humes Rebellion by which his Goods belonged to the King and no Sums can be made forth-coming as belonging to him after the Rebellion because they belonged to the King It was answered to the first That if the Earl of Hume had not dyed at the Horn the Pursuer would have either Confirmed as Exâ—cutor Creditor or called the Earls Executors but that is not necessar seing the Earl died at the Horn and could not have one to Represent him in mobilibus and that now the Donatar who succeeds compears To the 2. the Pursuer as Arrester ought to be preferred because albeit the arrestment be after the Rebellion yet it is before the Gift or Declarator and it is for a Debt due by the Earl before the Rebellion and so doth exclude the Donatar for which they produced a Decision marked by Dury Pilmour contra Gaigie In which case the Gift was granted by a Lord of a Regality having the benefit of the Escheat whereanent the Lord Advocat Represented that this could not be drawn in consequence to prejudge the King or his Donatar because the Lord of Regality being a Subject debuit invigilare sibi by declaring the Rebellion without delay but the King cannot so soon know nor is he prejudged by the neglect of his Officers Yet the â—ords uâ—animouslie preferred the Arrester the Advocat forbearing to Vote for they tâ—â—ught the câ—se of Creditors for Debts before Rebellion were not to be prejudged â—â—â—ng Diligence before Declarator or if they should Poind Arrest Adjudge c. Cranstoun contra Wilkiâ—on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse he is obliged to Infeft her in a Tenement exprest therein and in all the Conquest during the Marriage which Infeftments were to be taken to them the longest liver of them two in Conjunct-Fee and their Heirs betwixt them Which failzing to the Heirs of the Mars Body Which failzing to the Wifes Heirs whatsomever after which the Husband purchâ—sed a piece of Land but took the Infeftment thereofâ— to him and his â—ife and the heirs betwixt them Which â—ailzing to his own heirs whatsomever omitting the wifes heirs This Cranstoun obtains hiâ— self Infeft in this Conquest Tenement as Heir to the Wife and thereupon obtained Decreet for Mails and Duties Wiâ—â—ison as Heir to the Husband pursues Reduction of the Decreet on these grounds first That Cranstouns Infeftment as Heir to the Wifeâ— was null because the Wife was not Fiar but Liferenter 2ly The Wife having accepted of an Infeftment posterior to the Contract without mention of her Heirs that innovat the Provision of the Contract and excludes her Heirs It was answered first That the Man and Wife being Conjâ—nct fiars the Wife was Fiarâ— and the Man but Life â—enter because the last Termination of Heirs whatsomever Terminat upon her 2ly Albeit Cranstoun had taken his Infeftment wrong Wiâ—kison cannot quarrel the same because he as Heir to Wilkison was obliged to Infeft him as Heir to the Wife and to the posterior Inâ—eftment it is contrair to the provision of the Contract of Marriage and there does appear no accepting thereof by the Wife 3ly Cranstoun is
returns and therefore ordered an other Letter to be written to the Secretary to know the Kings Mind and the Custom of England in that point before answer and ordained the opinion of some Merchants to be taken whether Parkmans Ship Fraught in Norway to Holland and Disloaden there and thence going to France with Ballast not upon the account of the former Fraught but the Owners if it should be accounted one Voyage or two so that the return from France might be accounted the immediat return of the Voyage to Holland In this Processe the Lords by a former Interlocutor had found the taking on of the Men as they were qualified and proven to be no ground of seasure Dowgal Mcferson contra Alexander Wedderburn Eodem die DOwgal Mcferson having Charged Alexander Wedderburn of Kingennie Provost of Dundee for payment of a Sum of Money he Suspends on this Reason that the Sum was payable to Dowgal and his Wise in Liferent and contained a Clause of premonition and Requisition and the Sum to be Consigned in the Hands of the Dean of Gild of Dundee which was Consigned accordingly The Charger answered that he offered to prove by the Suspenders Oath that he took up the Money from the Dean of Gild and therefore he must re-produce the same with the Annualrents thereof since the Consignation It was answered that it being the Chargers fault that the Suspender was put to Consigne because he had not a Discharge granted by his Wife judicially that therefore he could not be lyable for Annualrent in that he uplifted the Soum unlesse it were proven he had made Profit thereof but he offered to Depone that he had all the Money still lying by him and got no Profit of the same and that he ought to have uplifted in regard he was lyable for the hazard of the Consignation The Lords found the Suspender lyable to produce the Money Consigned with the Annualrent since seing he uplifted the same without difference whether he made Profit or not The Baillie of the Regality of Killimure contra Burgh of Killimure Eodem die THe Heretable Baillie of the Regality of Killimure having Conveened and Amerciat a Person in the Burgh they Suspend on this Reason that the Burgh being a Burgh of Regality having its own Magistrats Inhabitants are only lyable to the Jurisdiction It was answered that the Burghs Jurisdiction being granted by the Lord of Regality is only cumulative and not exclusive of the Lord of Regality or his Baillie in the same way as the Jurisdiction of all Vassals is not exclusive of their Superiors Jurisdiction for the Burgh are Vassals Holding of him and therefore est locus preventioni and the first Citation without negligence is preferable Which the Lords found Relevant Earl of Argyle contra George Campbel Ianuary 15. 1668. THe Earl of Argyle pursues George Campbel to Remove from a Tenement of Land in Inerera who alleadged no Processe because the Pursuer produces no Infeftment of this Burgh or Tenement therein The Pursuer answered that he produced his Infeftment of the Barony of Lochow and offered him to prove that this is part and pertinent of the Barony The Defender answered that this Burgh cannot be carried as part and pertinent but requires a special Infeftment first Because by the late Marquess of Argyls Infeftment in anno 1610. produced this Burgh is exprest and not in the Pursuers Infeftment 2dly Because in the Pursuers Infeftment there is exprest particulars of far lesse moment 3dly Because a Burgh of Barony is of that nature that cannot be convoyed without special Infeftment The Pursuer opponed his Infeftment of the Barony of Lochow which is nomen universitatis and comprehends all parts of the Barony although there were none exprest and therefore the expressing of this particular in a former Charter or lesse particulars in this Charter derogat nothing it being in the Pursuers option to expresse none or any he pleases and albeit in an Infeftment of an ordinary Holding without Erection in a Barony Milns Fortalices Salmond Fishings and Burghs of Barony cannot be conveyed under the name of part and pertinent yet they are all carried in baronia without being exprest The Lords Repelled the Defence in respect of the Reply and found that this being a Barony might carry a Burgh of Barony as part and pertinent though not exprest albeit it was exprest in a former Infeftment and lesser Rights expressed in this Infeftment The Defender further alleadged no Processe because the Pursuers Infeftment is qualified and restricted to so much of the Estate as was worth and payed yearly fifteen thousand Pounds and the superplus belongs to the Creditors conform to the Kings Gift likeas the King granted a Commission to clear the Rental and Set out the Lands to the Pursuer and to the Creditors who accordingly did Establish a Rental wherein there is no mention of the Lands of Innerera and therefore they cannot belong to the Pursuer It was answered for the Pursuer that he oppones his Infeftment which is of the whole Estate and whatever Reservation be in Favours of the Creditors it is jus tertij to the Defender It was answered that the Defenders Advocats concurred for a number of the Creditors whom they named and alleadged that they would not suffer the Defender to be Removed seing they only can have Interest to these Lands in question The Pursuer answered that the Creditors Concourse or Interest was not Relevant because they have no Real Right or Infeftment but only a personal Provision that this Pursuer shall dispone and Resigne the superplus of the Estate in their Favours or otherwise pay them eighteen years purchase therefore at his option whensoever they shall insist Via actionis the Earl shall declare his option but they having no Infeftment cannot hinder the Donatar to Remove Parties having no Right which is the Creditors advantage and cannot be stopped by a Few of them likeas the whole Barony of Lochow is Set out by the said Commission to the Pursuer himself conform to their Sentence produced The Lords did also Repel this Defence and found that the Provision in Favours of the Creditors could not stop this Removing Earl of Kinghorn contra the Laird of Vdney Eodem die THe Earl of Kinghorn pursues the Laird of Vdney as representing his Father to Denude himself of a Wodset Right granted by the late Earl to the Defenders Father conform to the Defuncts Missive Letter acknowledging the Receipt of the Sums of the Wodset and obliging himself all written with his own Hand and craved that the Defender might Enter and Infeftâ— himself in the Wodset and Resigne in Favours of the Pursuer that the Lands might be purged thereof and insisted against the Defender first As lawfully Charged to enter Heir who offered to Renunce to be Heir The Pursuer answered he would not suffer him to Renunce because he offered himâ— to prove that he was lucrative Successor by the Disposition of the
a time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses
his Fathers Life It is an evidence he acquiesced to his Fathers Provision and cannot seek Annualrent against his Fathers Executors his Father having Alimented him neither is he lyable for that rigor that other Tutors are The Lords Repelled the Reasons as to the principal Sum and found that the Fathers Legacy was not in satisfaction of the Grand-Fathers Legacy but found no Annualrent due but Suspended the Letters simpliciter as to Annualrent Sir Alexander Frazer contra Alexander Keith December 16. 1668. SIr Alexander Frazer Doctor of medecine having purchased the Lands of Mâ—ekelty from Andrew Frazer who had Appryzed the same from Alexander Keith pursues a Declarator of the expiring of the Appryzing and of his Right of the Lands thereby It was alleadged for Alexander Keith that he had Depending Actions of Reduction against the Grounds of the Appryzing and thereupon alleadged that the saids Sums were satisfied before the Appryzing at least by the Pursuer or his Authors Intromissions with the Rents of the Appryzed Lands within ten years after the Deducing thereof During which time the Legal was unexpired by the late Act betwixt Debitor and Creditor whereby the Legal of Appryzings led since 1652. are prorogat for three years And as to the first point he alleadged that the ground of the Appryzing being a minut of Alienation betwixt the said Alexander Keith and Andrew Frazer whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender the Tenor of which minute is that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands and to purge all Incumberances thereupon and that the price shall not be payable till the said Alexander be put in Possession There is also a Commission therein granted to the Defender to purchase two expired Appryzings and to satisfie any other Incumberances and to Serve the said Andrew Heir to Thomas Frazer his Father and to obtain the said Andrew Infeft as Heir to his Father and likewise the Defender himself in the Lands so that the Right the Disponer had being only a back Bond granted by Frazer to Staniwood thereafter Lord Frazer by which he obliged himself to Denude himself of the Lands of Mickeltie in favours of the said Andrew Disponer Which back Bond was Appryzed by the two expired Appryzings but could not reach the Lands of Stranduff because Staniwood was not Infeft therein nor did the back Bond bear the same and therefore the Defender was necessitat to purchase the Right of a third Appryzing led at the Instance of Craigivar against Andrew Frazer the Disponer as lawfully Charged to Enter Heir to Thomas Frazer his Father who died last Infeft in the Lands of Stranduff and which would have excluded any Right that the Defender had from Andrew Frazer especially seing the Sum on which Craigivars Appryzing proceeded was a Debt due by the said Thomas Frazer to William Frazer which William Frazer raised a Pursuit thereupon against the said Andrew Frazer as Representing Thomas his Father and raised Inhibition upon a Dependence which Inhibition is Execute and Registrate against Andrew Frazer before he Disponed the Lands after which Dependence the matter being referred to Arbiters they Decerned Andrew Frazer to pay to the said William Frazer two thousand merks out of the first and readiest of the price of Miekeltie due by the Defender Alexander Keith or out of any other Goods or Sums belonging to the said Andrew so that the Decreet Arbitral upon the Submission being in the same Terms was equivalent to an Assignation or a Precept and the Defender Alexander Keith satisfying that Sum it is in effect payment of so much of the price and Craigivars Appryzing proceeding on that same Sum it was most necessar for the Defender to Acquire that Appryzing as proceeding upon a Right whereupon Inhibition was used before the Minute and upon a Decreet Arbitral in effect Assigning William Frazer to so much of the Sum due by Alexander Keith The Pursuer answered that the Defenders alleadgence ought to be Repelled because the Acquiring of Craigivars Appryzing was altogether needless and no way warranted by the Minute and so cannot exhaust the price because that Appryzing was led 10. years after the Minute and the Defender having accepted a Commission to do all things necessar for Establishing of his own Right he ought to have Served the Disponer Heir to his Father and to have Infeft him in Stranduff and to have Infeft himself upon the Disponers Resignation Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust he ought to have procured the same to have been Established in his Person as coming in the place of Andrew Frazer to whose behove the Trust was which would for ever have Excluded Craigivars Appryzing being long posterior to the Defenders Commission contained in the Minute so that it was his own fault that he suffered another to Appryze neither could the Inhibition have prejudged him though prior to the Minut in respect it was upon a Dependence upon which no Decreet in favours of the Inhibiter could ever follow the Cause being Extinct by Transaction and Decreet Arbitral neither is there any Process Extant neither is the Decreet Arbitral equivalent to an Assignation and Precept because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender nor doth it declare that that Sum shall belong to him but only Decerns Andrew Frazer to pay out of Keiths Sum or any other so that thereupon no Action could have been effectual against Keith to pay the Sum but only against Frazer himself The Defender answered that albeit no Sentence of a Judge proceeded upon the Dependence the Sentence of the Arbiters being in eadem causa was equivalent and whereas it is alleadged that the Defender had a Commission to perfect his own Security by the price left in his hand It was answered that the Commission being for his own behove and for his own Security he might make use of it or not make use of it as he pleased especially seing the Disponer was obliged to perfect the Defenders Security 2dly In the Minute there was no Procuratory of Resignation neither were the old Evidents Delivered to the Defender so that he could neither obtain Frazer to be Infeft much less himself upon Frazers Resignation wanting a Procuratory The Pursuer answered that the Commission being a Mandat accepted by the Defender did ex natura mandati bind the Accepter to do Diligence neither is it to his own behove but was also to the Disponers behove that his obligements might be fulfilled and his price not stopped and although the Minute want a Procuratory of Resignation that is no way Relevant for if the Defender had required a Procuratory of Resignation from the Disponer or had required the Writs to instruct the Service being in the Disponers hand and had been refused of either he had been in no fault but without any Diligence to suffer another
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
not to inâ—er seasure of the Ship and Goods which is valide though a Priviledge derogator to the Law of Nations but speakes nothing whether the carrying of Enemies Goods shall make the Ship Prize so that that Priviledge not being granted by the Articles the Law of Nations takes place and the Ship may be declared Prize likeas in the case of Overvails Ship Decided in the last Session all that is there alieadged being here alleadged Overvail not instructing any Flandrian Concession to sail with Hollanders his Ship was Declared Prize upon that same very ground and the Testimony of the Skipper at Linlithgow is most unsuspect it being taken before the Skipper was otherwise prompted to Depone neither had the Clerk any interest but the most that can be pretended is that he had relation to some of the Owners which signifies nothing and the Skipper by his Office being the person Commissionat by the Owners who by his Office may Sell or Burden the Ship without a special Commission his Oath makes a full probation against the Owners who Intrusted him especially here where the Merchant and most part of the Company by their own confession are Hollanders which proves sufficiently for the Privateer unless they instruct that the Ship and Goods belonged to free men and them only which they have not done evidently and surely by all that they have produced but the Skipper who is the main Man to be trusted is contrary therefore it may be and is presumed to be a Contrivance to carry on the Trade of de Rivier a Hollander under the name of Clepaâ— in Bruges his Brother in Law The Lords upon the whole matter declared the Ship and Goods Prize butâ— found not that the want of a Passe alone was sufficient neither did they put it to the Vote by it self whether the sailing by Hollanders alone would have been sufficient notwithstanding of the Treaty and the Kings Order Extracted out of the Council of England which though it related not to Scotland some of the Lords thought it was sufficient unless it did appear that the King had given contrair Order others thought not unlesse that Concession could be otherwise showen Thereafter the Srangers offered to prove positively that there was a Concession which the Lords would not Sustain in regard that the last Session the first of Iune was given before answer to prove the Concession and the Term was now circumduced for not proving thereof Scot contra Langtoun Iune 19. 1669. IOhn Graham of Gillesby having Wodset certain Lands to Iames Langtoun he did thereafter with consent of Earl of Annandail Superior Eike twelve hundreth Merks to the Reversion and the Earl Ratified the former Wodset and Graham with his Consent of new Disponed again the Lands for the Sums in the first Wodset and Eike and Added some other Clauses the first Wodset was before the Act between Debitor and Creditor and by vertue thereof the Wodsetter was in Possession the second Wodset was after the said Act the Superior Consented only to the second wodset and of the same Date gave a Gift of Grahams Liferent to Robert Scot whereupon Robert having obtained general Declarator pursues now special Declarator for the Mails and Duties of the Wodset Lands as falling under the Liferent of Graham the Granter of the Wodset It was alleadged for Langtoun the Wodsetter that he ought to be preferred to the Donator not only for the first Wodset which was constitute before the Rebellion but for the second Wodset comprehending the Bike because the Superior by his Consent to the second Wodset without any Reservation had Communicat all Right in his Person and consequently the Liferent Escheat of Graham the granter of the Wodset in the same manner as if he had given the Wodsetter a Gift thereof and so no Gift no being anterior to the other could prejudge the Wodsetter It was answered for Scot the Donator that the alleadgeance is no way Relevant to exclude his Gift unlesse the Wodsetter could alleadge a Deed Denuding the Superior anterior to the Pursuers Gift but here the Superiors Consent is not anterior but of the same days Date and may be posterior and therefore the Gift which is the habilis modus must be preferred unto the Superiors Consent to the Wodset which is but indirect and consequential to infer the Right as Liferent at least both must be conjoined and have equal Right as done simul semel It was answered for the Wodsetter that the Superiors Gift must not be preferred to the Consent though of the same Date because he was then in Possession of the Wodset Lands and needed no Declarator and the Gift is but imperfect until a general Declarator which is the Intimation thereof no Declarator being requisite to the consent of the Superiour to the Wodsetter and so is preferable The Lords preferred the Wodsetter It was further alleadged for the Donator that the Wodsetter must restrict himself to his Annualrent and be countable to him for the superplus seing now he makes an offer to find the Wodsetter Caution and so he must either quite his Possession or restrict conform to the Act betwixt Debitor and Creditor The Wodsetter answered that his second Wodset bearing not only a Ratification of the first Wodset in all points but a Disposition of the same Lands falls not within that Clause of the said Act of Parliament which Regulates only Wodsets prior to that Act and the new Disposition makes the old Wodset as extinct and innovat The Donator answered that there being a jus quaesitum conform to the Act as to the former Wodset the posterior Ratification cannot derogat therefrom or take it away unless it had been exprest and in meritis causa it was alleadged that the Wodsetter had near the double of his Annualrent The Lords preferred the Donator as to the Superplus more nor the Annualrent of the first Wodset and ordained the Wodsetter to Restrict The Wodsetter further alleadged that the Gift was Antidated and Simulate to the Rebels behove and so accresced to the Wodsetter Which the Lords Sustained and found the Simulation probable by the Oath of the Superiour and the Witnesses insert in the Gift Hamiltoun of Corse contra Hamiltoun and Viscount of Frendraught Iune 22. 1669. WIshart of Cowbardie having Wodset his Lands of Bogheads and others to George Hamiltoun from whom the Viscount of Frendraught has now Right he did thereafter sell the same Lands to Iohn Hamiltoun of Corse who took the Gift of Wisharts Fischeat and having thereupon obtained general Declarator pursues now in a special Declarator for the Mails and Duties of the Wodset Lands Compears George Hamiltoun and the Viscount of Frendraught and produced the Wodset Right and alleadged that the Liferent Right cannot reach the VVodset Lands because the Gift is Simulate to the behove of Wishart the Rebel and common Author and so is jus supervenient authorâ— accrescens successori to defend this VVodset Right and condescends that it is
whom he had entrusted them had carried them away but there being produced in the Process attested doubles of the former Dispositions under the hands of Nottars The Pursuer craved that seing the Witnesses alleadged insert might die and the Captain of purpose keeped up the Principals that the Witnesses might be Examined upon what they know of the Truth or Forgery of the saids Dispositions Which the Lords granted the Fame and suspition of the Forgery being so great though ordinarly they do not Examine Witnesses upon the Forgery of a Writ till the principal be produced that the Witnesses may see their Subscriptions whereupon Steel one of the Witnesses compeared and Deponed acknowledging the Forgery and the way of contrivance of it in which the Captain made use of him whereupon the Lords proceeded to Examine the Tutor who stifly stood to the verity of the Dispositions as being truly Subscribed by him but differed in the Date and in the persons who were Witnesses to the Subscription The Captains Son in law being also Examined whether or not the Captain had employed him to corrupt the Witnesses and if he had written any Letter to him to that purpose produced a Letter mentioning some things by word which he should diligently go about and being asked who the Bearer was Deponed that he was Robert Ogilvy the Tutors Servant who being in the House and presently called to the Bar upon Oath being interrogat whether he had brought North any Letter from the Captain to his Good-son Deponed that he had brought no Letter from him to his Good-son or any other and thereafter the Letter being showen him and confronted with the Captains Good-son he Deponed that he did bring that Paper and delivered it to the Captains Wife but he thought it was an order not being Sealed and being interrogat whether he had any Message in word from the Captain to his Good-son Deponed he had none and upon reading of the Letter bearing the contrair and confronting with the Captains Good-son he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh and the Captains Good-son further acknowledged that Ogilvy had desired him to deall with the Witnesses to stand to the Truth of the Writs he stifly denyed that point The Lords having considered his grosse Prevarication and contradictory Oath ordained him to be put in the Irons and the next day to stand in the Pillary betwixt ten and twelve and a Paper on his Brow to declare the Cause and did declare him infamous and appointed him to continue in Prison till further Order Mr. William Kintor contra the Heirs and Successors of Logan of Coat-field Iuly 9. 1669. LOgan of Coat-field having become Cautioner for the Tutor of Burncastle an Inhibition used upon the act of Caution Mr. William Kintor having Right by Progress from Burncastle obtained Decreet against the Representatives of the Tutor and of Coat-field the Cautioner for payment of the Annualrent of 10000 pounds due to the Pupil by the Marquess of Hamiltoun and the like Sum due by the Earl of Bucclengh in respect that the Tutor was obliged to have uplifted these Annualrents and to have employed them for Annualrent and thereupon pursues a Reduction of the Rights granted by the Tutors Cautioner as being granted after the Cautioner was Inhibited these Acquirers raise a Reduction of Mr. Williams Decreet and repeat the Reasons by way of Defense alleadging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquess of Hamiltoun and Earl of Buccleugh because they were in responsal Hands and the Pupil had no Damnage for it was free for the Tutor to uplift the Annualrents of Pupils Money when secure at any time during the Pupillarity but here they offer to prove the Tutor Died durante tutela and so was not lyable when he Died to uplift these secure Annualrents or to have employed them The Pursuer answered that the Lords had already found at the same Pursuers Instance against Iohn Boyd that the Tutor was lyable for Annualrent not only pro intromissis but pro omissis and for the Annualrent of the Pupils Annuals a finita tutela which is finished either by ending the Pupillarity or the Death or Removal of the Tutor It was answered that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil for that way of ending thereof could only been foreknowen by the Tutor that within the same he might lift the Pupils Annuals and give them out on Annualrent but he could not foresee his own Death but might justly think he had time before the expiring of his Tutory to lift and employ and so the Tutor not having failed in his Duty his Cautioner is free It was answered First That by the Lords dayly Practique Tutors are lyable for the Annualrents of Rents of and within a year after the Rents are due and there being so much parity of Reason in Annualrents it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory for albeit he might have keeped them in his Hands unemployed and only to leave them employed at the ish of his Tutory yet he was obliged to uplift them and if by any accident as being preveened by Death he did not employ them that accident should be on his peril not the innocent Pupils 2dly If need beis the Pursuer offers to prove the Annualrents were uplifted by the Tutor and so these that Represent him and his Cautioners are lyable for Annualrent therefore at least from the Death of the Tutor The Lords found that the Tutor was neither obliged to lift nor give out on Annual the Annualrents of his Pupil if the Debitors were Responsal but only once betwixt and the end of the Pupillarity and if he Died betwixt and the end of the Tutory he was free both of the Annual and Annualrents thereof but if he did actually uplift the Annalrents they found that it was sufficient to employ them any time before the Tutory ended and found that his Heir was lyable for Annualrent not from the Tutors Death but from the end of the Pupillarity and that he could be no further lyable then the Tutor if he had lived in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs and employ them This was stoped to be further heard Garner contra Colvin Iuly 10. 1669. JAmes Colvin having Apprized the Lands of Lady-kirk and some Tenements in Air and being Infeft therein Garners Wife and Bairns raise a Reduction and alleadge that the Apprizers Right is null as to the Tenements in Air because Iohn Garner had never Right thereto but the Right was Originally granted to young Iohn Garner the Pursuer by his Mother Brother The Defender answered that the said Right must be affected with his Apprizing as if it had been in the Fathers Person because
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make
him and had at last found him in the Tolbooth of Edinburgh for the same Debt where he yet was in as good condition as when he first escaped The Pursuer answered that the Rebel had escaped by the fault or neglect of the Jaylour for whom the Town was answerable in so far as they had given him the liberty of all the Rooms in the Tolbooth and that when he escaped he was left in the outmost Room and his Brother Son was permitted to abide within with him and the Catband on the outside of the Tolbooth Door was not put on and Locked which would have so secured the Door that nothing the Prisoner could have done within could have opened the same and that the Tolbooth Lock had a double and single Cast and when it was Locked only with the single Cast the Bolt might be thrust back but when with the double Cast it had a strong Backsprent and could not be thrust back and that at the time of the escape the Lock had but the single Cast so that the edge of the Stone being broken off there was access to press back the Bolt To the second it was answered that the Rebel having escaped through the Town or their Servants neglect jus erat acquisitum to the Pursuer making them lyable which could not be taken off by any Incarceration thereafter unless the Magistrates had followed him in the very Act of escape and recovered him but now they have six Moneths after his escape put him not in the Tolbooth of Pearth but in the Tolbooth of Edinburgh The Lords being unwilling to give either Party the choose of Witnesses for Probation had before answer appointed either Party to adduce Witnesses anent the condition of the Tolbooth and the manner of the Rebels escape which being now advised The Lords found that by the most pregnent Probation it was proven that the Catband used sometimes to be on in the day time and sometimes not and that Prisoners for Debt had the liberty in the Day time of all the Rooms of the Tolbooth the Probation was very contrair as to the breaking of the Stone wherein the Bolt entered but it seemed access could not be had to the Bolt without some breach of the Stone It was also proven the Catband was not then on and that the Bolt when it got the double Cast could not be prest back and could when it got the single Cast and therefore the Lords found that the Magistrates proved not their first Exception that the Rebel had escaped vi majori without their fault or negligence and found the second Exception of puting him again in Prison not Relevant The Lady Halliburtoun contra The Creditors of Halliburtoun Iuly 27. 1670. THe Lady Halliburtoun being provided by her Contract of Marriage to the Mâ—ins of Halliburtoun with the Miln and Pertinents and her Precept of Seizing bearing warrand to Infeft her in the Mains and Miln by Earth and Stone of the Land and by the Clap of the Miln her Seising having the said Precept ingrosâ—ed bears her by vertue thereof to be Infeft by the Earth and Stone of the Land but mentions nothing of any Symbol for the Miln or of any Reason that Seising was not taken of the Milnâ— because it was Demolished the Miln being thereafter Built or Re-edified the Creditors having Apprized did take Infeftment of the Mains by Earth and Stone and of the Miln by Clap and Happer and now in a competition betwixt the Lady and them anent the Rents of the Miln It was alleadged for the Creditors that they ought to be preferred because they were Infeft in the Miln and the Lady was never Infeft therein albeit her Precept of Seising buir an express Warrand to Infeft her therein by Clap and Happer It was answered for the Lady that her infeftment of the Land with the Miln and other Pertinents is anterior to the Creditors and must extend to the Miln albeit she took no special Seising thereof because there was no standing Miln at the time of her Seising so that the Miln being Builded by her Husband thereafter solo cedit and belongs to her as a Pertinent for though where a Miln is before Infeftment it cannot passe as a Pertinent without a special Seising yet where it is only Built thereafter it accresces to any Party Infeft in the Land especially being Infeft in the Land with the Miln thereof The Lords preferred the Lady she proving the Milnâ— the time of her Contract and Infeftment was not at all Built or having been Built was Demolished Charles Charters contra Cornelius Neilson Iuly 29. 1670. CHarles Charters and Cornelius Neilson both having Arrested their Debitors Money in the same hand Cornelius Arrestment was upon the 24. of Iune and Charles Arrestment upon the 28 But Cornelius Arrestment was upon a Bond whereof the Term of payment was not come and the Term of payment of Charles his Bond was come both Parties having their Citation before the Bailzies of Edinburhg in one day where Cornelius alleadged preference because his Arrestment was prior Charles Charters answered that albeit his Arrestment was four days posterior yet it ought to be preferred because the Term of payment of Cornelius Debt was not come whereas Charles his Term being past he has paratam executionem this being ready to be Advised by the Bailzies Cornelius raises Advocation and the Cause being Advocat the same Debate was repeated before the Lords and Cornelius added that now the Term of payment of his Sum was past and alleadged that albeit his Term were not come his first Arrestment is preferable though the Decreet thereupon could only be to pay after the Term were past and now his Term being also past before Sentence there needs no such limitation It was answered that it is not the Arrestment that constitutes the Right but the Sentence making forthcoming and though ordinarly the first Arrestment is preferred yet oftimes posterior Arrestments are preferred upon more timous or more orderly Diligence and the Diligence done by Charters is done more orderly because it was after the Term for if it were Sustained that Arrestments made before the Term of payment should be preferred to these made after the Term Creditors who has ready Execution should be postponed to others whose Debts were payable after a Liferent of 20. years time but as the second Arrester may Poind his Debitors Goods though Arrested formerly by another so may he crave Sentence to make forthcoming to take present effect by Poinding and cannot be excluded by an other Creditor upon pretence of a prior Arrestment which cannot receive present Execution and albeit the prior Arresters Term be now come yet he ought not to be preferred because he procured Advocation of the Cause without any just Reason either of Incompetency or Iniquity only to procure delay till his Term were past and therefore the Cause being now Advocat of consent the Sentence must now be of the same manner as it
to uplift all Sums due to him and he having uplifted a part of the price of the Land from the Defender and bonds for the rest the Pursuer after his Majority had by his Discharge produced Received from his Curator and Factor the said Money and Bonds and Discharged him thereof and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions whereby the Pursuer hath approven and Homologat the Disposition of the Land made by him and his Curators which he now quarrels The Pursuer answered First That the Defense is not Relevant for Homologation being a presumed or conjectured Consent not by Word or Writ but by Deeds done which import the adhering to the Disposition quarrelled it cannot be inferred by any Deeds but such as can have no other intent or purpose consistent with the Rejecting or disapproving the Disposition but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction for the Pursuer knowing that he could not be restored against his Disposition unless he did restore what was Received by his Warrand might justly take up the same from his Factor that he might be in capacity to Consign the same at the Bar as if a Minor having Bought Lands to his Lesion and having Wodset a part of the same he might after his Majority Redeem the Lands Wodset by himself which although it behoved to proceed upon the Disposition as his Title yet it being a Deed necessar to purge the Wodset and repone the Disponer to his own Land free thereof it would never importan Homologation or if he had in his Minority excambed Lands and Wodset a part of the Lands he acquired thereby the Redeeming or purging of the Wodset after his Majority would import no Homologation so neither can any Deed import Homologation which upon any account can be consistent with the annulling of the Right quarrelled upon Minority 2dly This Dicharge does bear expresly relation to Mr. Iohn Smiths Accompt of Intromission Subscribed at the same time and bears that the Discharge should be alse sufficient as if the Accompt were insert Ita est in the Charge of the Accompt wherein only mention is made of the Sums payed by the Defender there is an express Reservation that the Accompt shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition And as to that Clause in the Discharge that the Curators and Factor had done faithfully It relates only to their Intromission and not to their Omission and albeit it had born simply that they had acted faithfully that can only import that they had not acted Fraudulently and that they had done for the Minor what they conceived best but does not import that they had acted providently and skilfully so that the Minor may still Reduce their Deed. The Defender answered that his Defence was most Relevant being founded upon the Pursuers consent after his Majority for consent may be Adhibite not only by Word or Writ but by any Deed importing the consent as if a Minor giving a Bond in his Minority should pay a Terms Annualrent thereof after his Majority Or if a Minor intrometting with his Fathers moveable Heirship or Rents of his Lands in his Minority should continue to intromet for one Term or one Point further after his Majority in neither case would he be restored and yet such Deeds might be consistent and might be done to other intents as if his payment of the Annualrent did bear leâ—t before his Reduction he might be Distressed or that he continued his Possession lest the Rents or Goods might perish to the dammage of his party Yea though these were expresly mentioned in his Discharge and his Reduction were reserved it would be protestatio contraria facto and would not free him so neither can the Reservation in this accompt though it were repeated in the Discharge be sufficient especially seing he might have caused the Factor Consign the Money in the Clerks hands that it might be restored at the Discussing of the Reduction So that inconsistent Reservations or Protestations operate nothing 3dly The charge of this Accompt wherein only the Reservation is mentioned is a louse sheet of Paper subscribed with another Hand than the Discharge and has neither Date nor Witnesses and so cannot instruct that this is the very Accompt mentioned in the Discharge The Lords did not determine the Point of Homologation but before answer ordained the Curators and Witnesses in the Accompt to be Examined upon Oath whether the Charge produced be the same that was subscribed abinitio bearing the said Reservation But they inclined that the Reservation would take off the Homologation and would not be void as contraria facto Keir contra Nicolson Ianuary 28. 1671. JOhn Keir as Assigney by the Earl of Mar to some Feu-duties pursues a Poinding of the Ground against Nicolson of Tillicutrie who alleadged no Process because the Earl of Mar his Cedent had no right to thir Feu-duties which were due in his Fathers Lifetime whose Liferent was reserved â—whereupon compearance was made for Scotscraig's Heir who was Donator to the old Earl of Mar's Escheat and Liferent and concurred The Defender answered that the concourse could not be effectual because their bygone Feu-duties being moveable belonged to Scotscraigs Executor and not to his Heir and though the Concurrer was both Heir and Executor yet thir bygones belonging to Scotscraig as Donator being for years wherein Scotscraig lived they are moveable and ought to have been contained in the Inventar of his Testament as they are not It was answered that a Liferent-Escheat having tractum futuri temporis belongs not to the Executor even as to the bygones before the Donators Death unless they had been liquide and established in his Life but the Gift and all following thereon belongs to his Heir The Lords found that the bygones of the Liferent preceeding the Donators Death did belong to his Executor albeit in his Life he had obtained no sentence therefore Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others Ianuary 30. 1671. THe Earl of Queensberry being Superiour to certain Vassals of the Barony of Kelhead who did Dispone the Feu Duties and whole Casualities of the Superiority to Kelhead his Brother to the effect that Kelhead might be his immediat Vassal and that the Feuars might hold of Kelhead whereupon Kelhead was Infeft holding of Queensberry and thereupon pursues a Declarator of Non-entry both generally and specially in the said Summons It was alleadged for the Defenders absolvitor because they were not the Pursuers Vassals for albeit he was Infeft holding of Queensberry to the effect he might become their Superiour yet that Infeftment was null because no Superiour could interpose any Person betwixt him and his immediate Vassals Likeas the Non-entry could only infer the Feu Duty till Decreet or Declarator were pronunced which used to be per se but here
majore and that they had not failed in their duty having had a sufficient Tolbooth having four Doors and the inmost an Iron Door and that all being Locked the Person Incarcerat having gotten secretly conveyed in some Mason or Wrights Tools had in the night broken all the Locks and escaped It was answered that the Defense was not Relevant neither had the Magistrats done their duty and diligence for they ought to have had Chains and Cat-bands upon the utter-sides of the Doors with Locks thereon unto which the Incarcerat Person could not reach and it was alike how many Doors they had upon the Tolbooth with their Locks inward for the same means that would break up one would break up twenty and if such a pretence should liberat the Magistrats it were an easie way to elide all Captions and let all Persons for Debt free It was answered for the Town that the having of Cat-bands without Closed and Locked was not the custom of their Tolbooth who past all memory did never Lock the outward Chains but upon Malefactors and such is the custom of Edinburgh and other Burghs of Scotland The Lords having before answer ordained Witnesses to be Examined on both parts anent the condition of the Tolbooth and finding thereby that there was no Cat-bands or outward Chains Locked when this Prisoner escaped they found the Magistrats had not done their duty and so Decerned against them Alexander Naper contra The Earl of Eglintoun Feb. 14. 1671. THere was a Bond granted by the Laird of Minto as principal Lugtoun Iames Creichtoun and the Earl of Eglintoun Cautioners in Anno 1641. to Adam Naper and his Spouse in Conjunct Fee Alexander Naper as Heir to his Father pursues this Earl of Eglintoun as Heir to his Father for payment who alleadged Absolvitor because Minto having Disponed his Estate to his Son under express Provision to pay the Debt the same was satisfied by Minto younger and was retired lying by him a long time or by Robert Vrie who had the Trust of Minto's Affairs and Writs and Minto younger being lapsus bonis and Robert Vrie being dead the Pursuer had either practised with Minto upon his necessity or upon Robert Vries Friends to give him back the Bond and for evidence that the Bond has been satisfied and retired First It had lyen dormant above this thirty years without either payment of Annualrent or any Diligence 2dly The late Earl of Eglintoun being Forefault by the Usurpers his Creditors were appointed to give in their Claims or else to be excluded and yet no Claim was given in for this Debt and therefore craved that Witnesses might be Examined ex â—fficio for proving of the points foresaid The Pursuer answered that it was an uncontroverted principle in our Law that Witnesses could not prove payment of any Debt due by writ nor take the same away and as to the pretences adduced by the Defender they import nothing for the delay of seeking payment or Claiming the Sum was because the said Adam Naper was with Montrose in the War and his Heir remained a Minor and his Wife was Married to another Husband The Defender answered that the Wife was Liferenter of the Sum and she and her second Husband would certainly have sought her Annualrent or Claimed the Sum which takes off the excuse of the Pursuers Minority and albeit Writ be not taken away by Witnesses ordinarly yet where the matter is so ancient and the Evidences so pregnant the Lords uses not to refuse to Examine Witnesses ex officio The Lords ex officio ordained Witnesses to be Examined anent the being of the Bond in the Custody of Minto or his Doers being a matter of Fact but would not Examine them anent the payment made thereof George Bain contra The Bailzies of Culrosse Eodem die GEorge Bain pursues the Bailzies of Culrosse for payment of the Debt of a Rebel whom they had suffered to go free up and down their Streets whereupon he had taken Instruments against them and protested that they should be lyable for the Debt seing squalor carceris is justly introduced against Debitors that will not pay their Debt and the Magistrats of Burghs may not take it off in whole or in part and produced a Practique observed by Durie upon the 27. of March 1623. Smith against the Bailzies of Elgine where the Prisoner being suffered to walk freely upon the Streets till he obtained a Charge to set to Liberty the Magistrates were found lyable The Defender alleadged Absolvitor because he offers to prove that this Prisoner's going out was necessary viz. He being a Person altogether Indigent was permitted sometimes to go and mendicat his Bread and once to go to the Burial of a Child of his own and immediatly thereafter the Pursuers having taken Instruments the Rebel was put in Waird and continued there till he Died. Which the Lords found Relevant to Liberat the Burgh Apilgirth contra Locarbie Eodem die IN a Compt and Reckoning at the instance of Apilgirth for declaring two Apprizings Led by Lockerbie satisfied this Query was moved by the Auditor whether a Sum Consigned by umquhile Apilgirth for Redeeming a part of the Lands Wodset to Lockerbie conform to the Reversion in the Wodset might be proven to be uplifted by Apilgirth from the Consignator by the Oath of the Consignator and of the Clerk of the Process who Received the Money or only by Writ Apilgirth the Consignator being Dead The Lords considering that it was ordinar to take up Sums Consigned for Redemption of Wodsets being upon the peril of the Consigner did appoint the Oath of the Consignator and Clerk to be taken for proving that the Money was taken up by Apilgirth from the Consignator and that Apilgirth and not the Consignator put it in the Clerks hands and that the Clerk gave it up again to Apilgirth The Earl of Argile contra The Laird of Mcnaughtan Feb. 15. 1671. THe Earl of Argile pursues the Laird of Mcnaughtan to Remove from the Lands of Benbowie as being a part of the Earls Barony of Loâ—how The Defender alleadged Absolvitor because he prâ—duces a Seising dated in Anno 1527. proceeding upon a Precept of clare constat from the Earl of Argile in favours of Alexander Mcnaughtan as Heir to Giller Mcnaughtan of the four Merk Land of Benbowie by vertue whereof the said Alexander and his Successors to this day have Possessed and so have a sufficient Defense upon prescription by the Act of Parliament 1617. anent prescription The Pursuer answered that the Defense is not Relevant as it is founded upon the naked Seising only because by the said Act of Parliament there is required to all prescriptions of Land a Title in Writ preceeding the 40. years Possession which Title is dâ—stinguished in two cases First In relation to Rights acquired titulo singlari whereunto is required not only a Seising but a Charter which although they may be excluded by an anterior or better Right
permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands whereof he shew a full Progress and alleadged a continual Possession by doing all Deeds of Property that the Subject was capable of and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry such as the Lands in question were and that after the Defenders alleadging on a several Infeftment by the foresaid Seising and so acknowledging these Lands to be separâ—â—â—m tenâ—mentum he could not return to alleadge Part and Pertinent so considerable a tract of Ground six or seven Miles long yet the Lords would prefer neither Party to the probation but before answer ordained either Party to adduce Witnesses anent their Possession and the several specialities by them alleadged that by the probation the Lords might see the just Interest of either Party which might resolve into a promiscuous Commonty or into a Property to the one and a Pasturage or other Servitude to the other Marion Dods contra Lawrence Scot. Feb. 16. 1671. BY Contract of Marriage betwixt Iames Scot and Marion Dods Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass and the said Iames is obliged to imploy the same to him and her in Conjunct Fee and to the Heirs of the Marriage which failzing to her Heirs and Iames having Died without Children the said Marion pursues Lawrence Scot as his Heir to imploy the Sum conform to the said obligement who alleadged Absolvitor because the Pursuer has yet the Tocher in her own hand unless she can show a Discharge It was answered First That the Parties having lived together 22. years it must be presumed that the Husband was payed and had the Custody of the Discharge 2dly The Husband by his Testament acknowledges that the Sum was payed It was answered that this written Obligation cannot be taken away by such a presumption and the Assertion of the Defunct in the Testament has been procured by the Wifes importunity in her Husbands weakness and however cannot prejudge the Heir and can import no more then as legatum liberationis which can only affect the Deads-part of the free Geir The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher against all Parties having interest William Gordon contra Sir Alexander Mcculloch of Ardual February 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines by allienation of the Major part thereof pursues a Declarator of the Recognition against Sir Alexander Mcculloch who stands now Infeft therein who alleadged no Process because the Pursuer produces no Charter to show the Lands to hold Waird neither doth he produce the Infeftments Libelled by which the Recognition is alleadged to be procured and if he shall get a Term to prove and so Litiscontestation be made the Defender will either be excluded from his Defenses which he cannot propone or know before he see the Infeftments or otherwise two Litiscontestations may be in the same Cause by admitting of exceptions after the Term and albeit these Infeftments be not the Pursuers own Writs yet he ought to have used an incident upon his Summons to have compelled the Havers to produce the same and so before Litiscontestation the Defender might have proponed his Defense It was answered that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King for the Law presumeth that the King is Superior and that the Lands are Waird unless the Defender offer to prove the contrare As for the Infeftments whereby Recognition is incurred they are not the Pursuers Title but media concludendi which he may produce ad modum probationis The Lords Sustained the Process and assigned a Term to prove the Infeftments Libelled for inferring the Recognition and reserved all the Defenders Defenses after the production thereof in the same manner as if they were now produced Mrs. Katharin Mcgil contra The Viscount of Oxenfoord Eodem die THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator he gives a Bond of Provision to umquhile Mistrisse Mary one of his Daughters in satisfaction of her Portion natural and Bairns part there are yet three Children beside the Heir and the said Mrs. Mary did survive her Father and in the Compt and Reckoning of his Executory the three surviving Children claimed half of the Moveables as the Bairns part It was alleadged for the Viscount the universal Legator that a fourth part of the Bairns part behoved to belong to him which would have belonged to Mrs. Mary because the Bond granted by the Defunct being in satisfaction of Mâ—ries Bairns part her Bairns part must come in place of it and not accresce to the rest of the Bairns but must belong to him as Executor and universal Legator especially this Bond being granted on Death-bed is only effectual as a Legacy whereby the Defunct did burden his own Deeds part which can be no otherways understood then thus that he would make up Maries Portion to ten thousand Pounds her Bairns part being in the first end thereof and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part It was answered that such Bonds of Provision are most ordinar bearing it to be in satisfaction of their Bairns part which has ever been so interpret that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns and it was never heard that the Heir or Executor burdened with such Bonds of Provision did thereupon recur to seek that share of the Bairns part which was satisfied by the Bond of Provision neither is there any odds whether the Provision were by Legacy or Bond for the Reason of recourse being because the Heir or Executor is burdened to satisfie that Bairn and so in either case doth claim the share of that Bairn neither was it ever so understood that Fathers granting such Bonds of Provision did not thereby leave intire the Bairns part to the remanent Bairns The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns and did not belong to the Executor either as a part or in place of any part of the ten thousand pound but the samine did solely burden the Deads part Agnes Dundasse contra The Laird of Ardrosse and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse and their Heirs of 8000. Merks and after his Decease he granted a Bond to the Relict bearing to have borrowed two thousand Merks from her and obliging him to pay
the same to her in Liferent for her Liferent use only and after her Decease to William Mauld her Son and his Heirs and another Bond bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son and obliging him to pay to the said Henry and his Heirs and after all he granted a Bond of ten thousand Merks to the Relict her Heirs and Assigneys which was made up of what remained due of all the three this Bond the Relict Assigned to the Laird of Touch who having Charged Ardrosse and he having Suspended there arose a Competition betwixt Touch as Assigney and Agnes Dundasse as Heir and Executrix to Mr. Henry William and Henry Maulds and thereupon a division of the Sums betwixt the Parties thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds of two thousand Merks which he was Addebted to the said William and of one thousand he was Addebted to the said Henry Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related and no otherways and that in the former Decreet by mistake it was exprest that the ten thousand Merks Bond was made up of the eight thousand Merks Bond and of two thousand Merks of Annualrent thereof whereas the truth was it was made up by what was resting of the two Bonds due to William and Henry which he produced cancelled of the Tenor foresaid It was alleadged for Agnes Dundasse that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds and not to Touch as Assigney by the Relict It was answered First That the said Agnes had Homologat the prior Decreet and division therein made by giving Discharges accordingly could not claim any more 2dly Another having taken a Bond in the Name of her two Sons being Bairns in her Family might lawfully alter the same at her pleasure there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children or takes Bonds from their Creditors in their Names yet these being never Delivered the Parents may Dispose of them at their pleasure It was answered for the Executrix that the alleadgeance of Homologation is not Relevant because it is Emergent by Ardrosse his Oath that the ten thousand merks Bond was not made up by the Annualrent but by the said two Bonds so that there could be no Homologation of that whereof the Executrix was excusably ignorant To the second That albeit Fathers granting Bonds of Provision in Name of their Children may alter the same at any time before Delivery Yet where they lend out the Sum to a Creditor and take him obliged to a Child in Fee that cannot be â—ltered especially where the Parent is naked Liferenter and hath not reserved a power to lift and Dispone but whatsoever be in the case of a Father providing his Children who can by no presumption be thought to have any Means yet after the Fathers Death a Mother taking a Bond in the Name of a Bairn it must be presumed to be the Bairnâ— Money coming by the Father or otherwise and the Mother having stated her self naked Liferentrix in the one Bond and having no interest in the other Bond she could not recal or alter the same in prejudice of the Children especially seing they were Infants and had not Tutors to care for them It was answered that the Mother had held count for the whole Means of the Father and so had cleared any presumption that thir Boâ—â—s could be of his Means but she Liferented the whole Estate and made up thir Bonds out of the Rents and Annualrents and denyed to be Tutrix or Pro-tutrix so that the Money being freely her own and her Children having died before her she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor being of the Tenors above-written wherein she was naked Liferenter of the one and had not so much as a Liferent of the other and that the Sums were rather presumed to be of the Bairns Means then her own seing they had no Tutor and any medling with their Means was by her self and that their Executrix could not now be put to instruct what Means they had or be countable thereupon Iohn Armour contra Iames Lands February 21. 1671. IOhn Armour pursues his Tennents of some Tenements in Edinburgh for Meals and Duties Compearance is made for Iames Lands who produces a Bond granted by umquhil George Armour bearing that George Armour as Tutor Testamentar to Iohn Armour had borrowed 500. merks from Iames Lands and obliges him his Heirs Executors and Assigneys to repay the same and thereby sets some of the saids Tenements to Iames Lands ay and while he be satisfied of the 500. merks and thereupon alleadges he must be preferred to the Mails and Duties till he be payed It was answered this Bond and Tack were not sufficient in respect he does not bind himself as Tutor nor the Pupil but his own Executor and Assigneys and so it must be the Tutors own Debt 2dly This Debt cannot burden the Pupil simply upon the Assertion of the Tutor but the Creditor ought to have seen the Sum applyed to the Pupils use and therefore must yet alleadge in rem versam Otherways if the naked Assertion of Tutors may burden the Pupils when they borrow their Name it is a patent way to destroy all Pupils Tutors being oftimes insolvent 3dly The Tutor could not set a Tack of the Pupils Lands Longer than he had Interest as Tutor Ita est the Tutory is ceassed by the Tutors Death The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove which being proven they Sustained the Tack Alexander Pitâ—â—irn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun and by him Disponed to Sir Archibald Sydserf and by him to the Pursuer pursues the Tennents for Mails and Duties who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents for which they were comptable It was Replyed that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion and was neither Countable nor Redeemable and for proving thereof produced the Decreet of Declarator in Anno 1637. against which it was objected that it was null because albeit the Libel was upon a Clause irritant whereby it is provided if the Money were required and not payed within such a time the Reversion should expire yet at the Compearance and Production there is no mention thereof albeit at the Conclusion the Decreet bears because the Libel was sufficiently proven by Production of the Writs aforesaid which can be only understood of the Writs in the Production and it is not enough only that they were libelled upon for in all Decreets
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
sell r. he did sell p. 493. l 8. peculium r. periculum p. 497. l. 47 yet whether r. yet where the p. 498. l. 30. 29. ad r. 30. act p. 518. l. 42â— so Richard r. to Richard p. 533. l. 28. loadned r. abandoned p. 546 uses to be preferred Adde the Strangers Infeftment p 567. l 30. and jus r. as jus p. 569. l. 22. Heretable r. Moveable p. 570. l. 4. the Husband therein r. the Husbands interest therein p. 590. l. 32. Ardoch r. him p. 593. l. 38. granted to r. granted by p. 610. l 7. no Testament r. a Testament ibid. did exhauâ—t r. did not exhaust p. 627. l. 26 nothing r. any thing p. 659. l. 30. by invalidat r. to invalidate p. 657. l. 36. are not comprehended r are comprehended p. 665. l. 27. exclude r. excluded p. 666. l. 41. and in r. and not p. 679. l. 21 they could be r. they could not be p. 725. l. 2. another r. a Mother last Index p. 2. l. 49. fragrant r. fragrant A LIST Of the Heads of the following Index or Alphabetical Compend ACT of Indemnâ—ty Act of Parliament Act Salvo Jure Adjudger Adjudication Admâ—ral Advocat Adulterâ—e Alibi Aliment Ann Annexation Annuitiâ— Annus deliberandi Annuelrent Appryzing Arbâ—ter Arrestment Assignatâ—oâ— Attester BAillie Baâ—rn Band Barron Base Infeftment Bastardie Behaving as Heir Bills of Exchange Blank Bloodwiâ—e Bona fides Burgh Burgh Royal. CAptâ—on Casus â—ortuitus Cause onerous Cauâ—â—oner Cedent Certification Charge Chyrogâ—aphum c. Circumvention Citation Clause Clause of Conquest Clause Irritant Clâ—â—se of Substitution Clause de non alienando Coal Cognâ—tion Colledge Command Commissar Commssion Commodatum Common Pasturage Commâ—ntâ—e Compensation Competent and ommitted Compt Compt Book Conclusion of the Cause Confession Confirmation Conâ—usion Conjunctâ—ee Conqueâ—â— Conâ—ent Consignatâ—oâ— Continuation Contract Conâ—rary Alleadgances Contravention Creditor Cropt Cruves Curators Custodie DAmnage Date Death Deathbed Debitor noâ— presumitur donarâ— Debitum fundi Declarator Declarator of Escâ—eaâ— Declarator of Non-entrâ—e Declarator of Nullity Declarator of Property Deâ—reet Decreet Arbitral Decreets of â—nferior Courts Deâ—reets of Session Decreets of Parlâ—ament Delivery Depositation Designaâ—ion Devastation Dilâ—gence Discharge Disposition Division Donatâ—on Donatâ—on betwixt Man and Wife Donator Double poynding In Dubiis c EJection Erection Escheat Exâ—cutors Executor Creditor Execution Exception Exhibition Exhibition ad deliberanduâ— Extract FAther Feu Feu-dutâ—e Forfaulture Fraud Fraught Fruâ—ts Gâ—neral Letâ—eâ—â— Gâ—ft HEirs Heir Male Heir substâ—tute Heâ—r apparent Heâ—rs â—n Tacks Heirship moveable Herâ—table Holden as confest Holograph Homologation Horning Husband Hypothecaâ—ion IGnorantia juâ—is c. Improbation Incident Pro â—ndiviso Infeftment Inhibition Interdiction Interruption Intimation Intromâ—ssion Jus Mariti Jus superveniens c. Jus tertii K The Kâ—ngs Palace Knowledge LAw Legacy Licence to pursue Litiscontestation Locus penitentiae Lords Lucrative Successor Life Lyferenter Lyferent Eâ—cheaâ— Lyon Herauld MAgistrats Mandaâ— Mails and Duties Maintinance Marriage Melâ—oration Merchant Metus Causa Miln Minister Minor non tenetur placitare c. Mâ—nor Minorâ—tie and Leâ—â—on Minute Missive Letter Mother Moveable NEarest of Kin Non-entrie Noviter veniens ad notitiam OAth Oath of Calumnâ—e Oath â—x officio Oath in 〈◊〉 Oath qualified Obligation Offer Office Overseer PArt and pertinent Parties having Interest Paricide Passing from c. Payment Pension Perrâ—l Personal Possession Possessor bonae fidâ—â— Possessorie Judgement Poynding Precept Premunition Prescription Presumption Priviledge Probation Process Promise Protutor Prize Ships Pupil RAtâ—habition Recognâ—tion Redemptâ—on Reduction Regalâ—tâ—e Relief Relâ—ct Removâ—ng Renunciation Reparation Repâ—obatâ—re Requâ—sition Retour Reversion Right Real SAlmond-fishing Satâ—sâ—action Seasine Service Servitude Simulation Singular Successor Slander Special Declarator Spuiâ—zie Stipend Stollen goods Submission Substitution Successor Lucrative Summonds Superior Superiority Suspensions TAcit Relocatâ—on Tack Taxation Teinds Tenor Terce Term of payment Testament Thirâ—age Tocher Trads-men Tranâ—action Transferrence Trust Tutor Tutor nominat Tutor dative ULtimus Haeres Use of Payment Userie VIcarage Violent profites Vâ—tâ—ation Vâ—tious Intromâ—ssion WArd Wakâ—â—ng Warnâ—ng Warrandâ—ce Wiâ—e Wâ—tnesses Wâ—tnes ex officio Wâ—tnesses insert Wodsetter Wodset Writ INDEX OR An Alphabetical Compend of the first Part of the Decisions of the Lords of Session beginning in June 1661. and ending in July 1671. ACT OF INDEMNITY found to liberate a Souldier â—cting with a party of Souldiers in Arms under any Authority lawful or pretended and that his Warrand or Command was thence presumed unless it were proven by his Oath that he had no Warrand and converted the Goods to his own private use Iune 25. 1664. Ferquharson contra Gardner The same found February 15. 1666. Lyon of Murâ—ask contra Gordouns and others But here the application was â—ound probable by Witnesses Act of Indemnity â—ound to secure a Person intrometting by order of the Comittee of Estates for the time in so far as he compted to them without necessity to show his Commission or the Warrand of the Auditors that compted with him but not found sufficient to free him from what he had omitted though the said Accompt bear That he had made Faith that he had omitted nothing Which was only accounted an Oath of Credulity like that of Executors February 13. 1667. Lord Iustice Clerk contra Laird of Lambertoun Act of Indemnity â—ound to make Intromettors with publick Money lyable only for their Intromissions and not for omission though by their Commission they were bound to do Diligence February 23. 1667. inter â—osdem Act of Indemnity found not to make Collectors lyable for what they intrometted with and compted not for not being applyed to their own use but carried away by Souldiers for the use of the Army without necessity to instruct the Souldiers or Collectors Warrand which was presumed Iâ—ly 28. 1668. inter â—osdem ACT OF PARLIAMENT Relating a former Act and not conform thereto â—ound not thereby to alter the former Act but to be Regulat thereby Ianuary 20. 1665. The Heretors upon Don Water contra the Town of Abâ—rdene An Act of Parliament anent leaving the mid-stream free in Crâ—ives found to be taken away by Deâ—uetude past memory Iuly 29 1665. Inter eosdem The like of the Act 1555. cap. 29. Iuly 5. 1666. The Earl of Hume contra his Creditors Act of Parliament in favours of private parties not Printed assigning them to some bygone Maintainance found not effectual against singular Successors though not excepted in the Act they not being called thereto Iune 25. 1668. Inglis contra Laird of â—alfour Act of Parliament betwixt Debitor and Creditor found not to extend to Bonds for Rents of Lands though exceeding 1000. pounds but that personal Execution might be thereon December 6. 1661. Dalmahoy contra Hamâ—â—toun of â—innie The said Act found to Restrict a Wodset though the Usurpers Act and all such Acts made or to be made were Resâ—inded Ianuary 29. 1661. Laird of Lamingtoun contra Sir Iohn Châ—isty The Security required by the said Act for Principal and Annualrent accumulat found either to be by
Substitution was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to