Registrations within the time appointed should be Injustice because Testaments are not the Deeds of Parties concerned viz. Executors and Legators but the Wills of Defuncts which may be unknown to those who have most Interest and therefore the not Registration of them cannot be imputed to them as of Sasines and Hornings which are the Deeds of the Parties themselves and cannot be unknown to them 4. When Defuncts have not made Testaments it cannot be conceaved if there be not a Judicatory for Confirmation of Testaments how the nearest of Kin should be decerned and confirmed Executors Dative how Licences should be given quando dubia est haereditas and apparently damnosa and when haereditas est caduca and neither an Executor is nominate nor the nearest of Kin craveth to be confirmed how the Defuncts Goods should be preserved to Minors and Creditors if the Procurator-Fiscal be not decerned and either become comptable or a surrogation of Parties interessed And when Testaments have been already confirmed how shall Testaments ad omissa male appretiata non executa be expede How shall Executors Creditors be decerned How shall the intricate Questions be decerned and Disputs incident in the Confirmation of Testaments be decided anent the Nullity and Falshood of Testaments the competition of the nearest of Kin with the Executor Nominate of the Executor ad omissa with the Executor confirmed Of the Executor ad non executa with the Executor of the Defunct Executors anent the Praelation of Creditors and others of that nature The Confirmation of Testaments and the decision of Causes Matrimonial and Testamentary cannot be devolved upon the Lords of Session without great prejudice 1. Because the Lords are already overburdened with great Business and weighty Causes of Heretages and great Importance and therefore have been forced to discharge themselves of Actions possessory of Molestation Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the saids Lords whereby these Actions are remitted to other Judges because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice And it is not possible to the Lords to try the Verity so well which are the Words of the Act and Motive of making of it 2. The Lords have not time to hear Parties and urge earnestly calling and dispatch of the Businesses of greatest Consequence far less can they have time to urge Parties to confirm Testaments and to enquire and take course anent Defuncts Goods ne dissipentur to the prejudice of Creditors and Minors which should be done and is incumbent to the Commissaries ex officio albeit Parties urge not 3. The Lords Procedure by reason of multitude of Business before them is not peremptor and Parties after long and expensive attendance having prepared their Business for hearing cannot be assured to have them called and expede whereas Process before the Commissars are peremptor and Summons bear not continuations which is necessarly required in favourable Causes concerning Minors and poor People who cannot attend But especially in Edicts and Testaments which cannot bide delay least Minors Goods should perish And are so priviledged that in Vacant and feriat times they may be and are ordinarly expede without necessity of a licence All Questions and Causes and probation of Adultery on Impotency the Disputs whether frigiditas sit naturâ vel Arte utrum ante matrimonium aut superveniens Vtrum maleficium sit solubile an insolubile and others of that Nature cannot be agitate verecundé in so publick and eminent a Judicatory primâ instantiâ These Causes much less can be remitted to Sheriffs and other inferiour Judges 1. By reason of the Gravity and Intricacy of them (D.) Praetor etsi Patricius inter Maximos Magistratus Cognoscebat de Legatis peculiaris Praetor constitutus est qui de fideicommissis jus dicat hoc autem testamentariarum causarum membrum perexiguum est L. Si cui Legatum ff de condit demonst L. 2. ff de origine Juris § 32 ibi Cujac 2. The Sheriffs have either their Offices Heretable and Patrimonial or chosen yearly by his Majesty The first cannot have their Right of Jurisdictions enlarged to Causes of such gravity without a new Grant and Right from his Majesty and here how little favourable Heretable Offices are It is constant from Law and Reason by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee and Heretage Skeen de verb. Sign in Verbo Sheriffs Because in Jurisdiction persona eligitur and both Heretable and other Sheriffs are known to be Gentlemen who understand not the Law nor the way of Process and are forced to delegate pedaneos Judices and to depute their Friends and Servants who have no knowledge of the Law and being changed yearly have no time to learn the least formality of Process (E) Sheriffs should answer for their Deputs Jam. 1. Parl. 1. C. 6. 1404. Ja. 3. Pa 5. C. 26. 1469. 3. Sheriffs who in Conscience and according to our Acts of Parliament are lyable to answer for their Deputs may think it hard that Causes of such weight and Difficulty which cannot be decided but by such as understand the Civil and Canon Law should be remitted upon their perrils to be Judged by Deputs 4. The Sheriffs Jurisdiction both Civil and Criminal is so large as is represented by the learned Skeen de Verb. Sign in Verbo Sheriffs that it cannot be extended without great Prejudices to Causes and Actions of a different nature Because Removings Molestations Ejections Services and other Actions competent to be judged by the Sheriffs are for the most part real and possessory and may be easily decided by the customary Law of the Country and Acts of Parliament Whereas Testamentary and other Consistorial Causes are in apicibus Juris and cannot be decided but by the Civil and Canon Law not authoritative but according to the equity of the said Law which must be known to those who are Judges in these Causes The prejudices and common Objections against Commissariots are these 1mo That they are Episcopal Courts 2do That Official Courts are supprest in England 3tio Exorbitancy of Quots and other abuses are great in these Courts That the first may be cleared It is to be considered that Jura Episcopalia are of two sorts 1mo Such as are usurped by Bishops as intrinsically inherent in the pretended Office of Bishops 2do Such as extrinsically belong to them by the Grant of Princes or otherways These of the former sort as their usurped Jurisdiction over their Bretheren are extinct with the Office The last sort is not to be supprest if they be useful and necessary Thus the temporal Jurisdiction of Bishops was Reserved to Baillies of Regalities conform to the Infeftment to be holden of His Majesty Thus Episcopal Patronages are not extinct but are to be disposed upon as the Estates shall think expedient sic de caeteris That
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
what did belong to himself Nam noxa caput sequitur and the saids Lands did not belong to him in Property but only in Superiority And there is a difference betwixt the said case and the case of Lands holden immediatly of the King himself which by the Forefaulture of his Vassal are Forefaulted and does return to the King as he did give them pure and free and without the burden of any other Right granted by the person Forefault but such as the King did consent to and confirmed Whereas in the case in Question The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop who stands still His Majesties Vassal And as his own Right is not prejudged by the said Forefaulture so the Right of the sub-Vassal consented to and confirmed by him is not prejudged by the said Forefaulture 2do Lands holden of the Bishop waird or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle being Disponed by the Earl to be holden of himself will not recognosce by the Earles Deed in Disponing the Superiority or otherways if the Bishop had confirmed the Subvassals Right And there is the same reason in the case of Forefaulture in respect by the common Law when Lands do fall and are confiscat they fall to the immediate Superiour And by our custom in the case of Treason the King has that Priviledge that the Lands which are Forefaultare Confiscat and Forefaulted to him because the Crime is committed against him And therefore the Lands holden of other Superiours do Forefault to the King no otherways than they would belong to other Superiours if the Forefaulture did belong to them In which case the confirmation of the Subaltern Rights by the immediate Superiour of the person Forefaulted would save the Subaltern Rights that they could not fall under Forefaulture 3tio By the Law and Custom of the Kingdom it is lawful Subinfeodare and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio seing res devenit ad aliam causam resoluto Jure dantis resolvitur jus accipientis Yet in the case of confirmation by the Bishop there is a great difference seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it but has another Foundation whereupon it does subsist Viz. The Bishop's own Right and the confirmation granted by the Bishop and specially in this case seing it appears by the confirmation that the same is granted not to gratify the Subvassal and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out but in order to the Bishop's own Interest and Advantage In respect by the confirmation there is reserved to the Bishop beside the Feu-duty payable to Argyle a Feu-duty to himself and his Successors with a Clause irritant if it be not payed And fictione brevis manus the Feuar is in the same case as if the Bishop ab initio by one Charter had Disponed the saids Lands to the Earl of Argyle in Superiority and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter and to the Bishop the said other Deuty In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Property granted by the Bishop himself nor the Bishop of the said Additional Duty 4to By the Acts of Parliament K. Ja. 2d and K. J. 4. anent the setting of Feues and by custom ever since The setting of Fews was so speedful and necessar in order to the policy of the Kingdom That Vassals are not only allowed but invited to set their Lands in Feu which in effect is a general confirmation of all Fews so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same and the said Barony being of a large and vast bounds albeit it was Fewed to the Earl of Argyle yet for the labouring and bringing it in it was necessary to set it in parcells to other Fewers holden of him and the Fews in Question are granted before the Year 1606. A Subvassal holding of a person Forefaulted and his Right not being confirmed either by the Forefaulted persons immediat Superiour or by the King Quaeritur If his Right will fall under the Forefaulture Ratio Dubitandi Licebat infeodare noxa caput sequitur and yet is thought it will fall under the Forefaulture Because resoluto jure dantis c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa A Superiour being Forfaulted and his Vassals Right not being confirmed and so falling Quaeritur If His Majesty should confirm the Vassals Right if that will be habilis modus to secure against a poster or Donator Ratio Dubitandi The Vassals Right being altogether extinct by the Forefaulture there is nothing to be the subject of a confirmation which cannot be of non entis and the Vassal should have obtained a Gift upon the Forefaulture And contra The Vassals Right not being null of it self but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour because he did not consent to the same his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator If after Forefaulture His Majesty having granted a Remission the person Forefaulted is redintegrated to his Estate as if the Forefaulture had not been or if he should take a new Right upon the Forefaulture When a Forefaulted person has Right to succeed to any other person as Heir so that not only his own Estate but what would belong to him if he had entered Heir would fall to the King by his Forefaulture Quaeritur will the King be Lyable to the Debts of the Defunct seing he does not succeed to the Traitor 's own Estate and Patrimony but in haereditatem quae est nomen universitatis both as to the Debita and Bona and there is no reason that the Defuncts Creditors should be prejudged unless they had been in culpa either themselves or their Debitor His Majesty having presented upon Forefaulture a Vassal If that Superiour should be thereafter Forefaulted Quaeritur If the Feu not being confirmed will fall under his Forefaulture Ratio Dubitandi The Feuer is in the same condition with other Subvassals so that if he do not apply for confirmation he is lyable to the same hazard And yet on the other part it may be thought that the reason why Confirmation is necessary is because when Lands return to the King they return as they were given free of all Rights and Burdens but such as the King did
entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause â—um omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing
in favorem commercii Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt or poinded or otherways affected before Declarator and Diligence done by the Donator to affect the same Grana crescentia WHat is the reason for the astriction of Grana crescentia Answer Feuers are in effect Coloni and perpetual Tacksmen And they ought not to be in better case than Tennants whose Grana crescentia were upon the matter thirled the Food and Expences of Labouring being deduced it is thought the Tennent will have no more than will entertain him Great Seal A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment being granted under the Great Seal Quaeritur will it be valid Ratio Dubitandi The ordinary way of passing such Gifts is under the Privy Seal H. Heirs A Child being served Heir to his Mother and thereafter the Childs Father being served Heir to the Child Quaeritur if he can be said to be Heir of Line to his own Wife and ought to be discust before other Heirs A Woman being Married to a Bastard and having a Child Quaeritur as the Child will succeed to the Mother whether the Child having no other Heirs his Father being a Bastard so that he cannot have any Cognati upon the Fathers side will his Mother be Heir to him Ratio Dubitandi That by the Common Law the Mother does succeed and as the Child does succeed Ratione Cognationis and Relation to his Mother it seems that for the same reason she should succeed to him the Relation being mutual Quaeritur If a Son of a former Marriage having Right to succeed by Substitution in the case where the Father provided Lands to the Son of a second Marriage and the Heirs of his Body Whilks FailÈieing to the Fathers other Heirs and Assigneys for implement of his Contract of Marriage There being no other Children of the second Marriage must he be Heir to his Father the substitution being as said is in favours of the Fathers Heirs Ratio Dubitandi That in many cases the word Heir to another person than the person De cujus successione agitur is to be understood haeres habitu vel potentiâ non actu As if upon considerations a Brother should pass by his Brother of purpose and FailÈieing his own Heirs should substitute the Heirs of his Brothers Body But in this case it would seem by the Obligement of the said Contract of Marriage and the said right he has intended that he should be represented himself FailÈieing the Heirs of his Marriage Vide the tenth and eleventh Questions in the Title Successor titulo Lucrativo Litera S. If that should be the Construction Quaeritur Quid Juris If the Son of the second Marriage should decease the Father living Seing the Son of a former Marriage cannot be served Heir to his Father Cogitandum Lands being entailed to diverse persons substitute and the Heirs of their Bodies whilk FailÈieing to the other Heirs of TailÈie successivé Quaeritur If one of the said Heirs of TailÈie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body whether will the next Heir of TailÈie succeed Ratio Dubitandi Because the next Heir who would succeed FailÈieing the Forefaulted person and the Heirs of his Body cannot be said to be proximus seing the Children of the Traitor are nearer And though they be nulli and mortui civiliter they are not naturaliter nulli So that they being incapable and the others not having jus sanguinis it may appear quod nullius est pertinet ad Regem It is thought that the nearest of Kin should exclude the Fisk Seing qui sunt nulli they are not to be considered as to any effect and especially in that which is odious and exclusive And it is hard that the Estate should be Forefaulted by the Crime of a person who had never Right to it Behaving as Heirs QVae Ratio That the owning a Title of Honour and sitting in Parliament doth not import Behaving as Heir and yet the owning and intrometting with a Sword or Armour or any thing else will import Gestionem Answer That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor If the Appearand Heir doth meddle with any part of the samen Eo ipso adit passive quia miscet se rei which should be Lyable to the Executors Execution But a Title of Honour is not such an Interest as could be any way Lyable to the Creditor and the Appearand Heir in owning the same non libat haereditatem Quaeritur If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to being yet on Life will import Gestionem Ratio Dubitandi That he could not be Heir nor Gerere during the Defuncts Lifetime And on the other part the ratification is granted because he is Appearand Heir and might question the Right And as one may be Lyable passive by accepting a Right in the Defuncts time whereby he is Successor titulo lucrativo so he may Behave by a Deed in the Defuncts time Heir of Conquest THere being three Brothers and the middle Brother having an Estate and deceasing after the decease of his Elder Brother who had diverse Sons and the Younger Brother being on Life Quaeritur Who will succeed to the middle Brother as Heir of Conquest Ratio Dubitandi 1mo The Younger Brother being Heir of Line and who would be Tutor to the Children of the middle Brother if he had any it may be doubted if there should be a representation in conquest the Heir of Conquest not being properly Heir 2do Conquest ascending gradatim whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest being both collateral to the Defunct Discussion of Heirs A Person having provided his Estate to his Daughter with power to Dispone and Redeem is obliged that if he should make use of that power in prejudice of his Daughter he and his Heirs Male and Successors in that Estate and Dignity should be obliged to pay a certain great Sum of Money at the first term after his Decease Quaeritur whether his other Heirs or Executors and not only the Heir Male will be Lyable to pay the said Sum at the least in subsidium The Heir Male being first discust Lauderdale and Lady Yester Quaeritur Quo ordine A Successor Titulo Lucrativo should be Discust Answer It is thought that he should be discust before the Heir of TailÈie being in effect a general Heir Unless Lands be Disponed to an Appearand Heir of TailÈie in which case he should be considered as an Heir of TailÈie When the order of Discussion is Renounced If the Heirs of TailÈie or Provision may have recourse for their relief against the Heir general who by Law is first Lyable to the Debts Albeit as to Creditors that order be
I. Immobilia QVAE res inter Immobilia computentur Thes Bes litera L. p. 597. ad finem Poenae mulctae non exactae immobilibus accensentur Ibid. Item servi ascriptitii Ibidem Munitiones cum castro consideratae tormenta arma bellica si testator res pretiosas in Familia servari jussit Ibidem p. 597. Immobilia per applicationem aliis modis IMmobilibus accrescunt accedunt mobilia variis modis quod enim applicatione perpetua corporibus alterius naturae affixum infossum aut inaedificatum est Immobile fit nam mobile Immobili cohaerens Immobile censetur Hering de mol quaest 8. N. 18. 19. Per immutationem res mobiles sortiuntur naturam Immobilium ex quinque causis 1. Facto hominis ut Affixione Infossione Adjectione 2. Legis potestate fictione ut cum colonus ascriptitius aut mancipium rusticum glebae serviens pro re Immobili censetur 3. Attributione seu destinatione ut lignum ad aedificium destinatum inter Immobilia computatur 4. Subrogatione ut quibusdam casibus pecunia 5. Subjecto v. g. quando Jura nomina actiones ad Immobilia competentes aut mobilia pro talibus habentur Hering de molend Ibidem n. 20. sequen Imposition upon the Pint of Ale QVaeritur If the Gift of the Town of Edinburgh and other Burghs of Two Pennies upon the Pint of Ale or Two Merks upon the Boll of Malt may be questioned by any concerned upon that ground that being a burden upon the People it could not be laid upon them without consent of Parliament Answer It is thought it may be questioned 1. For the reason foresaid being the fundamental of the Liberty of the People 2. The whole Countrey is concerned and has prejudice thereby In respect that they who dwell within the Lothians will suffer as to the price of their Bear which will be less in consideration of the said burden of Two Merks upon each Boll and consequently the whole Countrey will be prejudged The price of the Bear in Lothian being the standart almost of the whole Countrey Edinburgh being Communis Patria And the Drink upon that occasion being both worse and dearer And the Shires of Lothian having concurred they came in end to a condescendence that the Town should be obliged never to desire the like And it is thought that the Gift both in passing at the Exchequer and ratification thereof in Parliament was so qualified 4. A Bond was given by the Town to that purpose to the Colledge of Justice and also to the Shires and both were trusted to one of the Commissioners for the Shires to be keeped and it 's informed was given back by him viis modis 5. The pretence of Debts and alteration of the way of living of the Magistrates is frivolous Seing the Town ought not to Contract Debts the Magistrates being only in effect Curatores And the King could not lay a Burden upon the Countrey for payment of his own Debts and the Debt of the Town is no less than it was formerly before the first Gift and the Magistrates should not live upon what is given to the Town 6. As to the pretence of his Majesties Prerogative it is against Law and the common stile of the Chancery which should not be altered and His Majesty doth make use of his Prerogative to remitt the rigour of Law but not to give Illegal Grants rei alienae to prejudge and Burden others And therefore such Grants are ever understood Salvo Jure and to be periculo petentis 7. The dispensing with the former Bond is of dangerous consequence His Majesties Prerogative being never against Justice and for taking away the Bonds and Rights granted to the People without their own consent otherways there should be no security for Liberty and Property Impositions of Burdens upon Shires SEing Shires are not Incorporations Quaeritur If upon any Pretext whatsomever The Major part may lay any Burden upon the Shire or any part of it without their Consent Impositions voluntary upon Shires WHen any Charges for Banner Trumpet or Coat c. for the Heretors are to be payed Quaeritur Whether the same are to be payed viritim per capita or proportionally according to the Valuation Answer They are Personal and not Patrimonial and are to be payed with respect to the persons and not their Estates Improbations IF Pursuers of Improbations should consign Of late some are of Opinion That Consignation is to be made only when Improbation is proponed by way of Exception But the Act of Parliament anent Caution in Improbations in place of which Consignation is come is clear as to all Improbations by way of Action or Exception It appears there should be a difference betwixt a general Improbation at the instance of Heretors and Buyers which is a Tentative used to try the condition of the Lands if they be affected with any latent pretences And the case of special Improbations and Improbations of certain Writes and that in this case there should be Consignation but not in the other unless upon Production a particular Right be taken to be Improven When in Improbation Writes are produced and certification craved contra non producta and it is alledged that the Defender has produced sufficiently to exclude the Pursuer Quaeritur If notwithstanding certification should be granted Answer By the late Practique the Lords are in use to hear the parties debate upon the Right which is thought hard seing if the Defender be confident of the Right he has no prejudice by granting the Certification and having gotten long termes he ought to produce all Writes called for Seing Improbation est processus tentativus and in order to try the Defenders pretence and not to debate a Right Impugning the Authority of Parliament BY an express Act of Parliament The Impugning the Authority of the Parliament consisting of three Estates is Treason Quaeritur If the misconstrueing or Impugning the proceedings of the Parliament if they amount to Treason Answer There is a difference betwixt Impugning Authority and Proceedings of Judicatories seing Judges may have an unquestionable Authority and yet their proceeding may be questioned And Papists and Hereticks cannot controvert the Authority of Parliament and yet may be dissatisfied with and misconstrue the proceedings of the same Which practice though Criminal doth not amount to Treason Traquair Item The Earl of Argyle Incendiarium INcendiarii vide in Thes Bes Lit. M. 72. p. 647. Incorporations JF a Colledge or Corporation being in Law a Body may Forefault the Rights of the Corporation and in what case Ratio Dubitandi Magistrates are only Curators loco Curatorum and the University never Dieth and Bishops and such other sole Corporations though they commit Barratry do not Forefault in prejudice of their Successors When a Town or Incorporation that has Power to Contract Debts do grant Bond obliging the Magistrates and their Successors and bearing Horning and other Executorials Quaeritur If
and her foresaids in an Annualrent effeirand to the said Sum out of his Estate beginning the first Terms payment at the Term of Whitesunday or Martinmass after the FailÈie of Heirs of his Body in case they faill with this provision that in respect the said Infeftment is not to be effectual but in the case foresaid it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription And that the same shall not Commence or begin to run until the said Right become effectual in the case foresaid Publick Infeftments IF an Annualrent to be holden of the Disponer be confirmed by the King Quaeritur If that Confirmation will make it publick If an Annualrent be Disponed out of diverse Lands to be holden of the Granter and a Decreet of poinding of the Ground be got as to some of the Lands will it make the Right publick as to others Inhibition INhibitions upon Bonds or Contracts if they import only that nothing should be done in prejudice of the same and execution thereupon So that the person having reduced upon the Inhibition cannot make use of the same to sustain any Right but such as Depends upon the Ground of the Inhibition Both the person Inhibited and the person receiver of a Right being out of the Countrey the time of the Inhibition Quaeritur If the Right be Lyable to Reduction Ratio Dubitandi Both the Inhibited and the party Receiver should be certiorated and put in mala fide And as the Person Inhibited is not certiorate if he be out of the Countrey if the Inhibition be not Execute at the Peer and Shoar of Leith so there is eadem Ratio as to the Lieges An order being used upon a Conventional Reversion or Legal against 〈◊〉 Person Inhibited Will the Inhibition affect the Renounciation granted by him seing he may be forced to give it and it has Dependence upon a Right before the Inhibition If an Inhibition being Execute against the Debitor only and being in cursu only as to the Inhibiting the Leiges where the Lands lye being at a great distance and Intimation in the mean time to the party who is about to bargain with the Debitor will put the said party in mala fide So that there may be a Ground of Reduction Ex capite Inhibitionis against the party Inhibited and that the said Right is fraudfully made and accepted without a necessary cause in defraud of the Creditor and after intimation of his Diligence A whole Barony of Land being affected with an Inhibition and being thereafter Disponed in several parcels to diverse persons If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts for his Relief they being in rem correï debendi Vide Annualrent Quaest 1ma If after an Inhibition is Registrate and Fourty Dayes are past if the Creditor getting notice that his Debitor has Lands within other Shires may inhibite the Leiges there and Registrate within Fourty Dayes And if in that case the Debitor must be himself again certiorate By a Minute an Estate much incumbered being Disponed and the price being agreed upon at a certain rate per Chalder or 100 Merks But so that the Incumberances should be purged by the price pro tanto and any Ease by the Creditors should redound to the Seller and the whole incumberances being purged the Buyer should Compt for the superplus of the Free-Money and should pay beside 20000 Merks after all is purged Quaeritur Whether the Benefite of the said Contract can be affected with an Inhibition or with Arrestment at the instance of Creditors of the Disponer Ratio Dubitandi The said Benefite is not Liquid If Inhibition does affect Lands acquired after Inhibition Answer Affirmative The Debitor not being Discharged to Dispone the Lands he has presently but simply his Lands and Estate If at least it affecteth such Lands as are acquired within the Shire where the Inhibition has been used Quaeritur If Inhibition doth affect Bonds though Moveable by the Act of Parliament so that the Creditor cannot Assign the same Quaeritur If Inhibition doth affect Bonds so that the Creditor cannot thereafter Assign the same Ratio Dubitandi That it is thought they affect only real Estates and Interests and there is no mention of Bonds and Debts which are Personal and they come not under the General of Goods and Gear which are real things Whereas Debts are Nomina and Entia Juris Rationis If Inhibitions affect Lands acquired thereafter The Ratio Dubitandi is No Diligence can affect non Ens and what did not belong to the Debitor And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye much less can it affect Lands that has not Situm as to the Debitor and does not pertain to him and the narrative of the Inhibition is that the Debitor intends to defraud his Creditor by putting away his Lands which does not militate as to Lands which he has not then A Bond being granted after Inhibition and thereupon the Debitor being denounced and his Escheat Gifted Quaeritur If the Horning and Gift may be Reduced ex capite Inhibitionis Ratio Dubitandi That the Ground being taken away the Superstructure falls so that the Bond being reduced the Horning doth fall Contra The King is not concerned upon what Ground the Rebel is at the Horn if the Horning be valid and formal and the Inhibition doth import only that the Debitor should not give any voluntar Right whereupon his Estate which is the subject of Execution for Debt may be taken away but not if he should commit Crimes either of Treason or should be Rebel or do deeds wherupon Recognition may follow That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture Liferent-Escheat c. George Marshal contra Inhibition upon Teinds IF Inhibition upon Teinds interrupteth prescription without a citation specialy where the possessor is in possession by a Right If Inhibition puts a party bruiking by a Right in mala fide so as before his right be reduced to be lyable for bygones after the Inhibition Tweeddale If to the effect foresaid he be in mala fide because being Commissioner for the Earl of Lauderdale he prevailed upon the same Grounds against Oxenford Insinuatio DOnationes quae excedunt summam quingentorum solidorum sive aureorum insinuandae sunt ut effusae donationes coerceantur ne fraus struatur Creditoribus falsis donationibus Insinuatio est publicatio donationis apud acta vel ejus quod agitur apud Judicem in scripturam redactio Perez Inst Lib. 2. tit 7. Instance BY the common Law of the Romans and by the custome of France Instantia perit after three Years as to all effects of it v. g. Interruption of Prescription But without prejudice of the Action if it be not
Demonstrative adjiciatur illud fit cum ab ipsa mensura contractus initium sumit hoc cum a corpore Jus fluviat P. 810. n. 58. Militia THE Gentlemen that went out in a Troup in the late Expedition having been at Charges for a Banner Trumpet and Coat c. Quaeritur If the said Charges may be laid upon the whole Shire Answer Negative Seing the Militia-Horse did not go out and it was munus Personale upon the Heretors within age to go out Miln A Defunct being in Possession of a Miln being a Horse-miln whether will the said horse and other instrumenta mobilia that are in the Miln belong to the Heir Quid Juris as to Milns when they are either sett to Tennants or possessed by Liferenters quoad the duties of the year wherein the Liferenter dyes vide Liferenter Litera L. and the like cases of Third and Teynà and Titular Litera T. Ministers Stipends in a Reddendo IN Infeftments of Erection the Reddendo is ordinarly a blensh Dutie and beside to Pay to the Minister the stipend therein mentioned Quaeritur whether the stipend be Debitum fundi Ratio Dubitandi That what is due upon the Reddendo not relating to Lands but to Teinds which are not fundus subjectum permanens But a Benefit ariseing out of the Lands such a Reddendo non afficit fundum no more than Teinds and a valued dutie Minor WIll the Heir of a Minor be restored upon that ground That the Lands being Entailed he resigned in favours of the Heirs whatsomever There being no Lesion to the Minor Minor non tenetur Placitare MInor non tenetur placitare holds not ubi agitur de Dolo culpa vel obligatione Defuncti as in Recognitions Forefaultures c. Cranburn contra Lady Carnegy Humby contra his Neice Reduction upon minority LAnds being disponed to a Minor and after his prefect age the Bargain being questioned as being to his prejudice in so farr as the same was for Eighteen years purchass and a half the same might have been bought at Seventeen according to the rate of the times Quaeritur If such Lesion not being Enorm and modica be relevant Ratio Dubitandi The defender contracted bona fide with a Tutor the pupills Father and Licet Contrahentibus se invicem decipere and non constat notourly That that was the rate and some of the witnesses declare the contrare and the defender will get a Buyer at the same rate Tweeddale contra Drumelzior vide Annualrent for Damnage Litera A. Decreet against Minors IF a Decreet against Minores indefensos no Curators being called in special but in general at the mercat Cross if they have any for their interest be null Ratio Dubitandi Gesta cum adultis non habentibus Curatores are not void and on the other part by the common Law Datur Curator ad Litem Minor non habet personam standi in Judicio lata Contra Minores indefensos sententia non Tenet L. 45. § 2. ff de re judicata vide Perez Institut Lib. 1. de Curatoribus § Danturne invitis Mobilia IF Mobilia has Situm when they are here animo destinatione Domini so that when they belong v. g. to Englishmen they are to be thought Res Scoticae and to be affected with the Laws of Scotland and he cannot dispose of them by a nuncupative Will. And e Contra If he should change their situm and transport them to stay in England Mobilium vilior possessio MObilium vilior abjectior est possessio facilius acquiritur amittitur quam immobilium in ea non cadit tanta affectio non est Locus in ijs redhibitioni Gentilitiae sive juri 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hering de molend quaest 8. n. 58. sequent Mobilia sequuntur conditionem personae sive Domini adeo ut ejus ossibus adaereant active passive Immobilia autem co-haerent Territorio Modus habilis IF a person haveing Right to Lands wherein another is infeft and in Possession so that he has the benefit of a possessory Judgment should dispone his Right which is preferable in favours of the said party who is infeft and in Possession as said is and thereafter another person upon a posterior disposition should compleat his Right by Infeftment whether or not will the said prior Right at least Extend to and import a discharge of the action of reduction and militate against the singular successor If a Reduction being intented the pursuer judicially Declare that he passes Simpliciter from the said action will that barr a singular successor Seing the said Declaration is upon record whereas in the case above mentioned the disposition is a Latent deed which cannot prejudge a singular successor If at least if it were Registrate in the register of seasins it would prejudge being none of the Writs appointed to be registrat therein Molendinum NOn licet molendinum exstruere in flumine publico sine Principis consensu Frits Jus fluviatile p. 10. n. 128. Molendina aquatica MOlendina igitur aquatica sunt de Regalibus Idem p. 13. n. 175. Molendina Bannaria MOlendina bannaria sunt ad quae integrae Communitates vel Pagi praecise ire coguntur Jus Fluviat 1225 versus finem Quae appellatio inde videtur sumere originem quia Bannire apud veteres Germanos idem significat quod Sancire Jubere Edicere Hering de Molend q. 11. n. 2 3. Molendina navalia Immobilibus accensentur MOlendina navalia pro immobilibus habenda sunt Hering de Molendinis q. 8. n. 26. quia aedificans ea intentione destinatione ea extruit ut semper perpetuo non pro motu sed pro molitura in ipso flumine manerent nec 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 molendinum aquaticum perpetuae morae causa ad ripam exaedificatum plus praestare potest quam Molendinum navale nec in illo quidquam nominari potest quod huic non insit rotae molares caetera omnia idem q. 8. 26. sequen Ea destinatio attributio ad molendum molendinum immobile reddit Molendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 MOlendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alata seu vento agitata immobilibus accensentur Idem eadem quaest n. 40. Districtus Molendini VEnditâ moletrinâ licet non fiat mentio districtus id est jus cogendi subditos molitoris ad molendum venit tamen quia simplex rei alienatio pertinentias rei continet Jus Fluviat p. 1229. n. 31. Quomodo qui sunt in districtu Molendini cogi queant ETiamsi is qui emit Molendinum non posset Jurisdictionaliter cogere Rusticos inhabitantes in districtu Molendini potest tamen eos cogere per actionem per manus injectionem in frumenta fruges Molendas Hering de Molendin q. 11. n. 145. An qui sunt in Districtu alibi molere possint SUbditi in aliis Molendinis molere possunt si Dominus Molendini
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
Bonds and to procure Discharges from the Creditors to Parkley and his Cautioners And nevertheless having payed the said Sums he did not take Discharges but Assignations to the saids Bonds which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor who did thereupon Arrest a Sum due by the Earl of Callender to Parkley Thereafter Captain Monteith having Right to Callendars Debt by Assignation from Parkley obtained a Decreet against the Earl which being Suspended upon double poinding It was alledged for Gloret that he ought to be preferred in respect of his Assignation and Arrestment whereunto it was Answered that Kinglassie being obliged as said is to pay the saids Sums had payed them and whereas he should have taken Discharges he had taken an Assignation Blank in the Assigneys Name and had filled up Glorets Name in the same So that Assignation being procured by him and lying by him and he being Master of it it was in effect his and he was in the same case as if the Assignation had been granted to himself and he had made a Translation to Gloret in which the Exception upon the obligement foresaid to relieve Parkley as it would have been competent against Kinglassie would have secluded also Gloret his Assigney by Translation In this Process Gloret his Oath being taken and he having declared that the Assignation was procured by Kinglassie and by him delivered to Gloret and that he payed nothing to the Cedent but that the Assignation was given to him by Kinglassie that he might be satisfied of certain Sums due to him be Kinglassie which he was to Discharge if he recovered payment by vertue of the said Assignation The Lords upon a Debate in praesentia preferred Monteith and found the Exception which was competent against Kinglassie if the Assignation had been to him and transferred by him to Gloret is competent against Gloret and that he is in the same case as if he had Right by Translation from Kinglassie This is most just and founded upon Law and Equity seing otherwayes Fraud cannot be obviate And in Law plus valet quod agitur quam quod simulate concipitur aut exprimitur And Fictione brevis manus Though it appear that it is but one Act viz. The Assignation made to Gloret yet in construction of Law there is two Acts viz. The granting the Assignation blank to Kinglassie which in the interim before it was delivered to Gloret was his evident and an Assignation immediatly made to himself and thereafter the filling up Glorets Name and the delivery of the Assignation to him which upon the matter is a Translation Spotswood for Monteith Lockheart Cuninghame Maxwell and Weir for Gloret D. 55. MckenÈie contra Fairholm Eod. die SIR George MckenÈie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father Ex eo capite that it was null ipso jure in respect he was Minor for the time and his Father was loco Curatoris to him and had not Authorized him at least could not be Author to him in rem suam It was alledged that he had not intented Reduction within the quadriennium utile And as to the Declarator of Nullity the reason was not Relevant In regard Bonds granted by Minors having Curators without their consent are Null they being interdicted eo ipso that they do choise Curators that they do nothing without them But Bonds granted or other Deeds done by Minors wanting Curators are not Null in Law but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction And that the Father though he be Tutor in Law for the Children being Pupils he is not Curator being puberes and of that Age that they may choise their their own Curators The Lords notwithstanding Found the Reason relevant and declared the Bond Null as to the Pursuer Quibusdam refragantibus inter quos Ego upon these Grounds that there is a great difference betwixt Tutors and Curators Pupills and Puberes the Father haveing by the Law power to name Tutors and consequently being Tutor of Law himself and having that Authority which may be derived and given by him to others whereas he has no power to name Curators to his Children when they are of that Age that they may choise themselves And though he should name Curators in a Testament his Nomination could not bind his Children And 2. If Children being Puberes should choise any other persons to be their Curators they would exclude and be preferred in that Office to the Father Whereas habenti Curatorem Curator non datur 3. If a Child should have an Estate aliunde and the Father his Son being pubes should cessare and be negligent in the Administration of his Estate there could be no Action against him for his omission which might be competent against him and his Heirs if he were Curator Gibson Clerk Sinclair for Fairholme the Defender Wedderburn and Lockheart for the Pursuer D. 56. Vrquhart contra Frazer Eod. die A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer for 24000 Merks and the Granters of the Wadset being obliged to warrand the Rental besides Custumes to be Twenty Chalders of Ross bear and to furnish Tennents and to cause them pay the said Duty and for each Boll undelivered Ten Merks Sir Alexander Vrquhart of Cromarty Donatar to the Escheat of the said Sir Thomas Elder and Younger pursues the Heir and Executor of the Wadsetter for the superplus of the Rent of the said Lands exceeding the Rent of the foresaid Sum for diverse Years In respect the Contract was usurary It was alledged by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond or Contract with Concourse of his Majesties Advocate It was Replyed That Rei persecutoriâ he had interest to pursue for what was indebite payed The Lords Found That the Process could not be sustained without concourse of His Majesties Advocate The Act of Parliament being express that the Creditor cannot repeat the excrescence above the Annualrent unless he concurr with the Advocate to reduce which appeareth to be provided of purpose to oblige the Creditor to inform and concurr with the Advocate for reduceing so unlawful pactions D. 57. Vrquhart contra Cheyne Decemb. 8. 1666. SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing for Surety of 4000. Merks borrowed from Lumisden the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the saids Lands and Fishing and reversion of the said Wadset pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset and to hear and see it Found that the Sum due upon the Wadset was satisfied and payed by the said Walter and his Authors Intromissions It was alledged that the Wadset
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
Patrimony of the Town but that the same had been acquired by the Town and thereafter had been Feued out by them in the Terms foresaid for payment of a Feu-duty pro omni alio onere they were of the opinion that they could not be Lyable to a Servitude unless the same had been constitute either by their Infeftments or otherwayes But specially in this case they being free by their Infeftment and express Clause therein of all burden or Servitude but their Feu-duty And that they could be in no other case than if the Town of Edinburgh should Feu any of the Lands lately acquired by them for payment of a Duty pro omni alio onere And yet the plurality of the Lords were of the opinion that if the Town could prove and make appear that they have been in use by the space of 40 years or above to Stent their Feuars for defraying their Affairs and Burdens and Works of the Town that they ought to be Lyable notwithstanding of the said Clause pro omni alio onere And accordingly before Answer a Term is Assigned for proving the Towns Possession In the interim The most Eminent of the Advocates and in special such as were for the Town being discharged pleading upon occasion of the Appeals this case came in Agitation the last Session and some of the Lords even these that were of the opinion formerly that the Feuars should not be Lyable to be stented upon the ground and mistake foresaid that the said Lands of Drakes was not a part of the Ancient Patrimony of the Town they were convinced upon the production of the Towns Evidents that the said Lands were a part of the Ancient Patrimony of the Town being Incorporate and contained in their Infeftments with the Burgh it self bearing one individual holding and Reddendo And therefore conceiving that est Judicis supplere quae desunt Advocatis in Jure and which arises upon production of the Papers they did argue that the Feuars ought to be Lyable for these Reasons 1 That there is a difference betwixt the Original Patrimony of the Town which is profectitious and flowes from the Bounty of Princes and is given to Burghs Royal for sustaining and defraying their necessary burdens and occasions and betwixt that which is adventitious and acquired by Burghs themselves by their own Moyen and Means As to the first The same being given eo intuitu and to the end that it should be a Stock for doing and defraying the Common Affairs and burdens and Charges of the Town it cannot be given away nor Feued but cum sua causa and so that they should be Lyable to Stents and Impositions upon occasions requireing the same Whereas the other is acquired by Towns as quilibet and the Feuars ought to be considered as quilibet and as in the case of other Feuars 2. Upon the consideration foresaid it is statute by diverse Acts of Parliament and in special by the 36. Act. K. Ja. 4. Parl. 3. And the 181. Act. K. Ja. 6. Parl. 13. That the Common Good of Burrows should be observed and keeped to the common profite of the Town And the said Act of K. Ja. 4th bears That Lands Fishings Milns and others belonging to the Burrows should not be set but for 3. Years allenarly and if any be set otherways that they be of none avail And as this is Law so it is just otherwayes those who have Tenements within Burgh and who upon occasions are Lyable to be Stented should be unjustly and heavily prejudged if the Lands and Fishings which being in the Towns hands would be lyable in the first place to such Burdens may be given away so that the whole burden should be rolled over upon them 3. The foresaid pretence That the Feuars were Lyable only to the Feu-duty pro omni alio onere was Answered viz. That omne aliud onus was to be understood of any other ordinar duty payable to the Town as Superiors but does not exempt the Feuars from these munera extraordinaria Patrimonialia for the necessar use and preservation of the Town As in the case of Lands disponed to be holden of the Disponer for payment of a Blensh or other Duty pro omni alio onere The Clause foresaid will not exempt the Vasal from Taxations and the Superiors relief of the same against his Vasal 4. It appears by a Ratification of Queen Mary produced for the Town That the Town of Innerness had made diverse Acts concerning the setting the Lands Milns and Fishings which are ratified by the said Queen And which if they were observed would oblige the Feuars to be lyable to to be Stented The saids Lords Who were of the said opinion thought That upon the Grounds and Production foresaid the Feuars of Drakies ought to be lyable without any farther probation to Stents imposed for the use and interest of the Town the same being imposed necessarly and equally according to the method abovementioned And yet the Town having adduced probation by production of the Records out of their Books and Witnesses they considered and thought that the possession of the Town by imposing their Stents by the space of 40. years was proven In respect it appeared by the Extracts out of their Books That from the year 1624. until 1664. they have been in use to impose Stents in case of Exigency for the private use and concerns of the Town Notwithstanding of what was alledged at the Bar against the said probation and in special that the Books themselves ought to be produced whereas there was nothing produced but Extracts of Acts and that the probation that the Town has been in use to Stent for repairing their Bridge did not quadrate to the case and point in question seing it was to be proven that Stents were imposed for the private use and concerns of the Town and the Bridge and repairing of the same is of publick concern and interest relating not only to the good of the Town but of the whole Shire And the Record anent Stent in relation to the Bridge being out of the way and not considered as a probation It was not proven that the Town had been in Possession 40. Years Nevertheless The plurality of the Lords did Find the Alledgeance foresaid of Possession by the time foresaid not proven upon that ground that the Bridge was not to be considered as the proper concern of the Town And did suspend and declare in favours of Inches and other Feuars Diverse of the saids Lords dissenting upon the Grounds foresaid and that it appears to them that the Feuars upon the account of their Lands were Lyable to be Stented being the ancient and proper Burgal Patrimony of the Town And albeit a continued tract of Possession by the space of 40. years which hardly is to be expected in servitutibus or impositions that are discontinue could not be made out as they conceive it was yet the Feuars having homologate and consented and submitted to
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
gratuitously Disponed his Estate In praesentia D. 334. Gibson contra Fife 12. February 1676. A Woman having lent 100 Merks upon a Blank Bond and the same being lost The Debitor was pursued for payment of the said Sum and did confess that he had truly borrowed the Money and granted the Bond Blank and he was willing to pay the same being secured against any pursute at the instance of any person who might have found the said Bond and filled up his own name therein The Lords thought the case to be of great difficulty and import as to the preparative that practice of granting Blank Bonds having become too frequent And resolved in this case to take all possible Tryal by the Debitors Oath and otherwayes of the date and Writers Name and the Witnesses in the said Bond And thereafter to ordain the Debitor to pay upon surety that the Pursuer should relieve him of any Bond that should be found of that date and Sum and writen and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk D. 335. Anderson contra Lowes 15. February 1676. THE Lords in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Write thereinspecified proven by the Adminicles thereinmentioned In praesentia D. 336. Marshal contra Forrest and her Husband eod die IN a pursute at the instance of a Minor against his Tutrix The Pursuer having referred to the Tutrix Oath that she had intrometted with diverse particulars belonging to him The Husband of the Tutrix Alledged that she could not declare in his prejudice It was Replyed That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix he could not be in worse case as to modum probandi by the Tutrix her superinduceing a Husband And that the Intromission of a Relict after her Husbands decease being such as to Money Bonds and many other particulars as could not be known to any person but to her self nor proven but by her own Oath It were hard that the Minor should be prejudged of his Probation by her own Deed And the Husband is not in the case where a Debt is only to be constitute by the Wifes Oath seing the Ground of the Debt is constitute by Write viz. By the Nomination or Letter or Tutory And when there is a pursute against any person that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath and the Minor is more priviledged seing by the Common Law Minors have a tacite hypotheck of their Tutors Estate and by our Law they ought to be favoured at least so far as it should not be in the power of the Tutrix to ruine them by convoleing ad secundas nuptias ante redditas rationes The Lords thought the case considerable And Ordained the Tutrix to declare Reserving to themselves to consider what her Declaration should import Forret Reporter Gibson Clerk D. 337. E. of Dumfermling contra the Earl of Callender 16 February 1676. THE Earl of Dumfermling having Right by Assignation to the Obligements contained in the Contract of Marriage betwixt the deceast Earl of Callender and his Grand-mother in swa far as the same is in favours of the said Lady pursued the said Earl of Callender for Implement of the said Obligements and the Lord Almond now Earl of Callender as having gotten a Right to the said Earl of Callender's Estate with the burden of his Debts and the said Earl in the interim having deceased did insist against this Earl of Callender For whom It was Alledged That the Process ought to be transferred against some representing the said Earl of Callender as Heir of Line or otherways And tho the Pursuers Procurators declared they insisted only against Callender for a Declarator that the Estate disponed to him should be affected with the foresaid Obligement It was urged for Callender That the said Earl's Heirs ought to be called Seing the Declarator against him being a singular Successor that his Lands should be affected was only a subsidiarie Conclusion and could not be sustained before the Debt was constitute and the Debt could not be constitute unless the pretended Debitor or some representing him were called The Lords notwithstanding Found Process and that there were no necessity of calling or transferring against the Heirs of the Debitor Actor Sinclar Bernie and others alteri Lockheart Monro Clerk In Praesentia D. 338. Doctor Borthuick contra the Earl of Crawfurd eod die THE Earl of Crauford having borrowed 8000 merks from the Mother and Grand-mother and two of their Children for themselves and in name and behalf of their said Children he is obliged by his Bond to infeft the said Mother and Grand-mother in Liferent and the said Children in Fie in an Annualrent out of certain Lands but by a mistake the Precept of Seasin contained in the Bond is in favours only of the Mother and Grand-mother and for infefting them as Fiars of the said Annualrent and accordingly they are infeft And yet thereafter the said Mother and Grand-mother acknowledging that the said Infeftment was so taken upon mistake did by a Disposition bearing the Narrative foresaid dispone the Fee in favours of the said Children and there was a Pursute intented at their instance against the said Earl of Craufurd for poinding of the Ground Wherein It was Alledged That the Mother and Grand-mother being only Lifrenters could not resign the Fee which they had not and if the Pursuers made use of their Right from them the Defenders ought to be assoilÈied because the Mother and Grand-mother by a Transaction betwixt the said Earl of Crawfurd and them had accepted the time of the Englishes a parcel of Lands in satisfaction of the said Debt The Lords Found notwithstanding of the said Alledgance that the Pursuers ought to have process for poinding the Ground In respect the Mother and Grand-mother had de facto the Fie in their person upon the said Precept and Seasin And the same being given indebite as said is they might have been compelled to denude themselves thereof and therefore might voluntarly and accordingly did denude themselves thereof and the said Transaction could not prejudge them seing they derived their Right from the said Persons qualificate in respect of their Interest and Error foresaid and they might have been compelled to give the same and the Earl of Crawfurd was not in bona fide to contract with them Seing by the Bond granted by himself they were only Fiars and the other but Liferenters Actor Lockhart and Beaton alteri Cuningham and Suinton Clerk in praesentia D. 339. Doctor Hay contra Alexander 17. Febr. 1676. DOctor Hay his Case 28 January 1675. supra resumed and taken to consideration this day And tho some of the Lords considered that it was hard to canvel Certifications in Pursutes of Improbation after a long Dependence and diverse Terms given to produce and delays of Extracting
is both Heir of Line and Heir of Provision And if need bees the Relict and Children as Creditors by the said Provision contained in the Contract of Marriage and in the Testament may get Decrees against him as charged to enter Heir of Provision and if he renounce may adjudge the 30000 lib. provided to the Heirs of the Marriage Actor Sinclair alteri McKenÈe and Zeaman Gibson Clerk In praesentia D. 354. Irving contra Forbes 8. June 1676. IN the case Irving contra Forbes It was debated among the Lords whether a person should be Lyable as vitious Intrometter notwithstanding that it was Replyed that he was confirmed Executor And Answered That as to Superintromission beyond what was confirmed he was Lyable as Intrometter It was asserted by the President and some others That it was the custom and daily practique That notwithstanding of Superintromission even before the Confirmation the Executors ought not to be Lyable but secundum vires and that a Dative ad omissa may be taken yet others were positive of the Opinion that a Person Intrometting with more nor is confirmed was Lyable as vitious Intrometter Seing it could not be denyed but he was Intrometter and he could not plead nor pretend to be Executor as to what was not confirmed and if there were no Confirmation he would without question be lyable as Intrometter and the Confirmation ought not to put him in better case seing notwithstanding of the same as to Superintromission he is not only Intrometter without warrand and so vitious but is perjured having made Faith the time of the Confirmation that nothing was omitted And it is hard that a custom contrare to the Principles of Law and to the Opinion of Hope and other Lawyers should be obtruded unless upon a Debate in praesentia there be a Decision which may be the Foundation of a Custom D. 355. Burnet contra Gib 9. June 1676. THE Lords in a SpuilÈie of Teinds Pursued at the instance of Alexander Burnet contra William Gib Found That the Defender or his Author having enclosed a peice of Marish Ground to be a Yard and having made no other use of the same since but for Carrets and Roots he was not Lyable to the Bishop Titular or his Tacksman of the Parsonage Teinds for payment either of the value of the Parsonage Teind or for the Viccarage Teind which was found by plurality of one or two Voices These that were for the Decision did found their Opinion upon these Grounds viz. 1. That the Heretor potest uti Jure suo and that the Titular has no tye nor Servitude upon him but he may either Labour or not his own Ground If he do it not in fraudem or aemulationem of purpose to prejudge the Titular 2. That the Defender in order to his own Interest having thought fit to enclose his Ground and to make use of it for Carrets and Roots for which by the custom of the Country Teind is not due neither to Parson nor Viccar the Defender is not Lyable for Teind Seing Viccarage Teind and the payment of it is regulate according to Custom It was urged by the Lords that were of an other Opinion That the Titular of the Teinds had an interesse partiarium as to Teinds so that albeit the Heretor may uti Jure suo it is to be understood that he should use the same sine injuria without prejudice of the Titular And if of purpose to prejudge the Titular he should not Labour but suffer his Lands to ly waste he will be Lyable to the Titular for the value of the Teind that was formerly payable or might have been gotten As was Found in the case of the Laird of Polwart against the Minister of Polwart For If he should inclose all or a considerable part of his Ground that was arable Land and whereof the Teind was either payed to or led by the Titular it were hard that it should be in his Power to prejudge the Parson to the advantage of the Viccar But in that case the small Teinds would be considered as great and parsonage Teinds quia surrogatum sapit naturam surrogati And far less it ought to be in the Power of an Heretor to prejudge altogether the Titular or the Minister who is provided out of the Teinds as in the case in question by encloseing Ground formerly arable and making that use of it that neither the Titular nor Parson can have any benefite of Teind It being unjust that the Titular should be prejudged and that the Heretor should advantage himself and by his own Deed should free himself of Teind And albeit by the custom in some places Teind is not payed for Carrets and Roots in Yards the same being looked upon as inconsiderable and the Bounds where the same are Sowen or planted being small parcels of Ground for the private use of the Heretors own Family yet when a considerable Tract of Ground is enclosed and parked so that the Heretor has the same if not more profite than he has of his other Laboured Ground by selling the Roots and Fruits of the same as about Edinburgh or other great Cities where great parcels of Corn-Land are taken in and enclosed to the use foresaid as by the Common Law Teind is payable even for such Fruits and Profits So by our Law the Titular ought not to be prejudged And the custom that Teind is not payable for Roots and such like ought to be understood of such as grow in Yeards about Houses as said is for the proper and domestick use of Heretor or Tennent but not where a great parcel of Ground is taken in and destinate for profite and advantage by Soweing or Setting and Selling Herbs and Roots D. 356. Nairn contra Scrymger 13. June 1676. IN a Suspension at the instance of a Person who had bought Lands upon that Reason that the Seller who charged for the Price was obliged by the Contract to give him a perfect Progress and that the Progress exhibited to him was defective In swa far as the Lands did hold of the Bishop and the Original Right was not produced but only a Charter of Confirmation in Anno 1611 and the Charter confirmed was not produced and the Progress since the Charter of Confirmation was but late and some of the Charters had no Seasin following upon the same and some Seasins wanted the Warrand of Charters and Precepts And albeit it was alledged that the Charters would be found Registrate in the Bishops Register that defect was not supplyed thereby seing the Bishops Register was not Authentick and ought to have no other respect than a Register of any other Lord or Baron of the Writes granted by them The Lords Found That tho much may be said upon the Progress foresaid to defend against any Person that will pretend Right to the Lands and to found Prescription upon them A Buyer nevertheless was not Obliged to accept and acquiesce to the same as a sufficient Progress
whereby it was agreed that Pitrichie who and his Predecessors had an ancient Wadset of the Lands of Achincreive and others being a part of the said Barony should have the Reversion Discharged by Geight and that Geight should give him a new Right of the said Wadset-Lands irredeemable and holden of the King and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Merks And that on the other part Pitrichie should Dispone to Geight the rest of the Estate and the Right he had thereto by the said Recognition Thereafter Pitrichie having intented Declarator for Nullity of the said Minute upon pretence that Geight did refuse and fail to perform his part did obtain a Decreet and did enter into a Bargain with the Earl of Aboyn and did dispone to him a considerable part of the said Estate that by his Power and Interest in the Countrey he might be maintained and be able to enjoy the rest But before the granting of the said Right to Aboyn Geight had intented a Reduction of the said Decreet of Nullity upon that Reason That the said Decreet was given In respect he had not the Writes at that time in hand to produce and to instruct that he was able to give a Right of the said Wadset-lands to be holden of the King and that they were now found upon search of the Registers So that he had not been in mora and the not production of the said Writes ought not to be imputed to him but to the Confusion of the Times his Writes being scattered and his Father having been long time a Sufferer and Prisoner for serving the King The Lords Found That the said Decreet being in effect upon a Certification for not Production and Geight condescending and offering to instruct that he had not been negligent and the occasion and manner that the said Writes were not in his Hand and how he had recovered the same he ought to be reponed against the same And that by the Reduction before the granting of the Right to Aboyn it was res litigiosa and Aboyn ought to be in no better case than Pitrichie D. 371. _____ contra _____ eod die A Bond granted by a Woman stante matrimonio for payment of a Sum of Money being ratified judicially It was Found That the Ratification did not bind her being of a Deed null in Law tho it was judicial being likewayes stante matrimonio D. 372. Blair of Kinfauns contra Mr. Thomas Fouler 6. July 1676. IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler It was Found That an Action at the instance of the Executors of a Minister for building a Manss and refounding the Expences of the same is competent against the Heritors for the time and their Representatives but not against a singular Successor and that it is not Debitum fundi Newbyth Reporter Gibson Clerk D. 373. Rynold contra Erskines eod die THE Lords Found That a Father having assigned certain Bonds for provision of his Children the Creditors have not only an Action of Reduction competent to them but a personal Action to refound the Sums uplifted upon the Bonds if the Assignation should be found to be fraudulent But did Reserve to the Defenders to debate whether the same was fraudulent The Defenders having Alledged that the same were granted by their Father having a plentiful Fortune for the time so that he might lawfully provide his Children Newbyth Reporter D. 374. Crauford contra Gordon eod die IN the Case Alexander Crauford contra Sir Lodovick Gordon The Lords thought the point in question viz. Whether or not a Backbond being granted by the Compryser the time that he did receive an Assignation whereupon he Comprysed or by a person having gotten a Disposition did affect the said Rights not only as to the Granters of such Back-bonds and their Representatives but likewayes as to Singular Successors And if the same should be Found to affect if it did affect only while the said Right was personal and before Infeftment but not after The Lords thought the said point to be of that importance as to the Consequence and Interest of the People that it was recommended that they should have their thoughts thereupon to the effect that the same may be decided with great consideration And accordingly this day the case being fully debated among themselves It was carryed and found by plurality of Votes That such Back-bonds do affect even as to a Singular Successor tho extra corpus Juris And albeit they be granted after the receiving of such Rights And that they affect Comprysings even after Infeftments has followed thereupon during the Legal but not after Diverse of the Lords did Argue and Vote against the said Decision and in special A. I. C. N. B. S. T Upon these Grounds 1. A Singular Successor does not succeed in universum Jus as an Heir but only in Jus Singulare And if the said Jus be simple and pure without any quality in corpore Juris any extrinsick quality or Deed may bind the Granter and his Heirs but not the Singular Successor who neither can nor is obliged to know and take notice of any quality that is not in the Right 2. The quality of a Right is an Accident of the same and Accidentis esse est inesse So that in Law where the same is not in corpore Juris it doth not affect the Right as to Singular Successors 3. Upon the Considerations foresaid Reversions and Bonds for Granting Reversions do not militate against a Singular Successor unless they be in corpore Juris or Registrate And tho there be an express Statute to that purpose yet it doth not follow a contrario where there is no Statute Back-bonds should affect seing the said Statute is made conform to the Common Law and is Declaratory as to Reversions being then most in contemplation of the Parliament but doth not derogate from the Common Law in other Cases 4. Back-bonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent and cannot operate more than if a formal Retrocession were made in favours of the Cedent which could not prejudge a Singular Successor unless it were intimate 5. It would be an irrepairable prejudice to the People and to Singular Successors who finding a Right pure without any quality are in bona fide to think that they may securely take a Right thereto And yet should have no remedy if upon pretence of Back-bonds and Deeds altogether extrinsick their Right may be questioned 6. As to the pretence of the prejudice to the People viz. That they are in use to grant Assignations in order to the deduceing of Comprysings thereupon and may be frustrate if the Back-bond should not affect the same is of no weight Seing they trust the Assigneys And it is their own fault if they Trust persons that doe not deserve Trust And they have a Remedy by intimateing the
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In
Crimes committed upon the occasion foresaid but the said pursute being taken away by a Remission there was thereafter a SpuilÈie pursued at the instance of the Master of Rae having Assignation from his Father and by his Tennents whose Goods had been Robbed and taken And it being Alledged against the said Pursute that it was prescrived The Lords sustained the Reply that the Prescription was interrupted by the foresaid Process before the Justices And again this Day a Summonds of SpuilÈie which had been formerly intented being produced and it being Alledged that by the said Summonds and Execution upon the same the Prescription was interrupted The Lords Found That the same did not interrupt In regard it appeared that the Names of the Defenders have been Blank in the saids Summonds and since filled up with another Ink And it appeared by the Executions that the same were at the instance of Gray of Arbo and others mentioned in the Summonds without specifying the said other Persons and the Defenders had settled with and satisfied Arbo So that it appeared that the Names of the said other persons had been filled up in the body of the Summonds of purpose to be a Ground for the said Reply But tho the Lords did not sustain the Process as to the effect of giving the Pursuer Juramentum in litem In regard the Goods Libelled were Libelled to extend as to the number of Good and the Damnage sustained by the Pursuers Cedent to vast Sums exceeding the value of that whole Country yet the Lords did adhere to their former Interloquitor That they would consider the time of the advising the profits of the Goods as in a SpuilÈie It occurred to some of the Lords and was moved whether Juramentum in litem being given to the Party wronged and upon that account that the quantities and the Kinds of Goods taken from him could not be so well known to others and proven if the same be a personal favour Or if it may be extended to an Assigney Newbyth Reporter D. 448. Holmes contra Marshall 2. February 1677. THE Lords Found That a Woman being provided by her Contract of Marriage to a Liferent of the Conquest of Lands or other Goods that should be acquired dureing the Marriage And the question being of Moveables and she having accepted a Third of the same she could not return to crave a Liferent of the other two parts tho it was Alledged by her she had not accepted the same in satisfaction of what she could claim 2. It was Found That a Woman being provided as said is to a Liferent of all the Moveables her Husband had the time he Marryed her and which he should acquire during the Marriage It was in her Option either to take her to her Liferent of the whole or to claim the 3d part in property but making Election could not varie Tho this was Found by plurality yet some of the Lords were of Opinion that by the Provision foresaid she has only a Liferent and that she had not the said Election Seing eo ipso that she is provided to a Liferent of all it is intended and agreed there should be no Communio bonorum It being inconsistent that she should be both Proprietar and Liferentar usufructu formali Newbyth Reporter Gibson Clerk D. 449. _____ contra Tait 6 February 1677. THE Lords Found That a Bond being granted on Death-bed with consent of his Appearand Heir for his Interest bearing an obligement to pay a Sum of Money Is to be considered not as a Legacy but as a Bond inter vivos Seing by the Common Law all persons are in legitima potestate as to the granting of Bonds And our custom whereby persons on Death-bed are not in in liege poustie is qualified with an exception viz. unless the Heir consent in whose favours the same is introduced Castlehill Reporter D. 450. _____ contra _____ eod die THE Lords Found That Appearand Heirs may be pursued as behaving before the year expire seing eo ipso that miscent adeunt passive And as to that pretence that they would be wronged if it should have appeared by the probation that they did not meddle It is of no weight Seing the Lords may modify Expences D. 451. _____ contra _____ 29. February 1677. AN Exhibition being pursued at the instance of an Heir of Conquest And it being Alledged by the Heir of Line that some of the Lands whereof the Writes were craved to be exhibited were in Holland and that by the custom there the Eldest Brother did not succeed as Heir of Conquest but all the Brothers and Sisters equally so that the Writes ought not to be delivered to the Pursuer who had only an Interest as to the fifth part whereas the Defender had four parts having acquired three from his Brothers and Sisters and having one himself and he having the far greater interest in the Land and Writes ought to have the keeping of the same being Lyable to make them forthcoming to the Pursuer The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes In that same Cause It was Alledged That as to the Lands in Scotland the Defuncts Right was only by a Comprysing which was personal and whereupon no Infeftment had followed and which belonged to the Heir of Line as Tacks and Reversions The Lords nevertheless Found that the Heir of Conquest has Right to the same conform to a late Decision D. 452. Purveyance contra Knight 8 June 1677. THE Lords Found Upon the advising of a concluded Cause after Debate in praesentia in the Case in question That Liber Rationum and a Compt-Book of a Merchant containing an Article of Debt due by him to the Pursuer was a sufficient Probation In respect the said Compt-Book was written with the Merchants own Hand and he was known to be a person of great Honesty and Exactness and the Article was so clear that the time therein mentioned he stated himself to be Debitor in the said Sum all by gone Annualrents being payed and in an other part and Article of the said Book he did acknowledge that he had borrowed the said Sum and was special as to the time and there was a great Confidence and near Relation betwixt him and the Creditor and therefore the Lords decided as said is in respect of the said Circumstances but thought it hard that Compt-Books in Scotland where there is not that exactness that is else where in keeping Books should have that Faith that is given to them elsewhere Mr. Robert Stewart Actor alteri Cuningham Mr. John Hay Clerk In praesentia D. 453. Campbel contra Taite eod die THE Lybel being referred to the Defenders Oath and he having declared upon a general Interrogator that he was not owing the Sum acclaimed It was urged the time of the advising of the Oath that the Defender should declare whether or not he had gotten a parcel of Lint and what way he had payed the price of the
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
given them to the Pursuer to be grassed he might have taken away his own Goods It was Replyed That the Pursuer was not obliged to debate the Right and property of the said Goods but in spolio he needed Lybel no more but that the Goods were upon his Ground and in his Possession and taken away vi and in manner Lybeled And spoliatus ante omnia restituendus The Lords debated among themselves whether the Defence be Relevant and did not decide the case Some being of Opinion that if it should evidently appear that the Pursuer was not in Possession of the Goods as suos but in behalf of the Defender as if there were a Writt betwixt the Pursuer and Defender bearing that the Goods were the Defenders and that the Pursuer contractu Locationis Conductionis had taken the same in graseing that the Defender could not be Lyable for SpuilÈie of his own Goods But if it should appear that there was any violence in taking them away he may be pursued for a Riot D. 460. Drumkilbo contra Mcmath and Oliphant eod die JAnet Mcmath Lady Grange being Creditrix to the Laird of Kilspindie And having upon an Arrestment in the hands of Drumkilbo obtained a Decreet to make forthcoming There was thereafter a Suspension of double poinding against the said Janet Mcmath and Sir Laurence Oliphant of Gask who pretended Right to the Sum due by Drumkilbo by an Assignation intimate before the Arrestment And in the Competition foresaid the said Sir Laurence was preferred But thereafter in an Improbation of the said Assignation at the instance of the said Janet Mcmath the said Sir Laurence having abiden by the same It was Found after a long and litigious dependence by the space of 50 Years that the Assignation was false And William Dick of Grange the said Janet her Son having thereafter intented a pursute against the said Sir Laurence to hear and see it declared that in respect the said Sir Laurence by his compearance and making use of the said false Assignation had been prefered and had rendered the foresaid Diligence by Arrestment ineffectual and had transacted and made benefite of the said false Assignation That therefore In swa far as he was Lucratus he should make the same forth-coming for payment of the Pursuers just Debt Especially it being considered that he had Discharged one of the Cautioners in Drumkilbo his Bond It was Answered That he was in bona fide to acquire a Right to the said Assignation neither knowing nor being accessory to the Forgeing of the same and he had made no benefite by uplifting from Drumkilbo any part of the said Debt but by transferring his Right in favours of Mr. John Blair which he had done bona fide And as to the Discharging the Cautioner it could not prejudge the Pursuer seing the Discharge would fall in consequence of the Assignation The Lords Found That albeit he were not accessory to the Forgery yet having used a false Write and having litigiously so long maintained the same and upon that occasion the Pursuer be ng altogether frustrate he ought to be Lyable in quantum lucratus and what he had gotten more by the Transaction with Mr. George Blair then he had given for acquireing the said Right And the Lords reserved Action to the Pursuer against the Cautioner And in case the Cautioner should be AssoilÈied without prejudice to have recourse against the said Sir Laurence as Accords Actores Lockheart Monnypenny c. alteri Cuninghame c. Mr. Thomas Hay Clerk In praesentia D. 461. _____ contra The Laird of Cramond eod die MR. Cornelius Inglis being Debitor to Mr. John Inglis of Cramond in the Sum of 3500. Merks He did give to Cramond for Security of the said Sum and for relief of Cautionries for him extending to towards 10000 M. a Bond for payment and relieving him of the said Sums with an obligement to Infeft in the Lands thereinmentioned for his Security and relief of the said Sums and a precept of Sasine whereupon Infeftment followed And thereafter Mr. Patrick Inglis the said Mr. Cornelius his Eldest Son did grant a Bond to Cramond relateing expresly to the said former Bond and Right of Relief and in Corroboration thereof and the Infeftment thereupon containing an Obligement for Payment and releif of the said Sums Thereafter the said Mr. Patrick did obtain from his Father a Right and Infeftment of the said Lands upon that narrative that he had undertaken the payment of his Fathers Debts and that he was engaged for him and that the said Right was granted to him for his Relief whereupon he obtained Possession and before any Diligence at the instance of any of the other Creditors he did pay some Annualrent to Cramond upon a Discharge relateing to Cramonds Right and Infeftment foresaid Thereafter there being a Multiple poinding raised against Cramond and some of the Creditors who had deduced a Comprysing against the said Mr. Patrick of his Right the Creditors Alledged that they ought to be preferred because Cramonds Right was only base and the said Mr. Patrick's Right was cled with Possession before any pretence of Possession in the person of Cramond and that they having Comprysed Mr. Patrick's Right are thereupon preferable to Cramond Whereunto it was Answered That Cramonds Right being a Right of Relief could not take Possession ex natura of the Right until a distress and because it was provided by the Right it self that Cramond should enter to the Possession in case of distress and in case he should not be payed of his Annualrent which he could not do before Declarator And that the Lords had diverse times Found that Infeftments of Warrandice whereupon there could be no Possession before Eviction should be preferred to posterior Infeftments and that Infeftments of Annualrent being anterior should be sustained in a Competition with posterior base Infeftments cled with Possession Because the first Term of Payment of the Annualrent was not come when the posterior Infeftment came to have Possession and that the Competition was not betwixt Cramonds and the Comprysers Infeftment upon the Comprysing but Mr. Patrick's own Infeftment and that Cramonds Infeftment was cled with Possession before the Compysers Right and Interest by payment of the Annualrent of the said Sum due to Cramond himself as appeared by the Discharge accepted by Mr. Patrick relating to Cramond his Right and Infeftment foresaid And that base Infeftments by the Common Law being valide And by the Act of Parliament K. Ja. 5th in anno 1540. It being provided that for obviating Fraud by granting private and latent Infeftments in prejudice of posterior Infeftments that are publick being either holden of the Superior or by Possession the said Act of Parliament cannot be extended to this Case In Respect Cramonds Right cannot be said to have been fraudulent and private as to Mr. Patrick In respect he did not only know the same but did ratify and corroborate the said
Right as said is both before his own Right and after the same and before the interest of Creditors he did in effect ratify and homologate the same by making payment conform thereto as said is The Lords In Respect the case was of moment as to the Preparative Ordained that it should be Debated amongst themselves And upon the Debate they decided these points 1. That the said Act of Parliament K. Ja. 5th being general and there being no Exceptions of Infeftments of Relief the said Act is comprehensive of the same 2. Tho the Act of Parliament anent Registration of Seasings does secure Singular Successors yet the said Act of Parliament K. Ja. 5th is not taken away tho in in some cases the Lords are apt to favour prior Infeftments where there is no presumption of Fraud And therefore when there is any pretence of Possession as in the case of Infeftments of Warrandice they Found that fictione Juris the Possession of the principal Lands is the possession of the Warrandice 3. That albeit Mr. Patrick could not question Cramonds Right for the Reason foresaid yet the Comprysers being Singular Successors may question the same The Lords therefore preferred the Creditors And yet sustained Cramonds Infeftment In swa far as concerns the Sum foresaid due to himself and not as to Cautionries In respect the said Discharge was only of the Annualrent of the Sum due to himself This Decision appears to be hard upon these Considerations First Because Cramonds Infeftment tho base as to the point of Right by the Common Law is preferable And as to the said Statute it introduces only a praesumptio Juris that base Infeftments not cled with Possession are presumptively fraudulent And the Question whether Cramonds Infeftment was fraudulent was to be considered in relation to Mr. Patrick and his Infeftment and not to his Successors And the said presumption was taken away by Mr. Patrick his Deed foresaid having corroborate as said is Cramonds Infeftment which was verified by a Write Subscribed by Witnesses and which was was Found to militate even against the Creditors and to cloath Cramonds Infeftment with Possession 2. Cramonds Right being Jus individuum tho upon distinct Grounds it could not be fraudulent and private ex parte and ex parte publick Actores Sir John Cuninghame c. alteri Lockheart In praesentia D. 462. Mr. John Kincaid contra Gordon of Abergeldie eod die MR. John Kincaid having pursued Gordon of Abergeldie as representing his Father by Behaving His Defence was That he had Right by an expired Comprysing whereby his Father was denuded so that he could not be Heir to him But in the same Process in respect a Reduction and Declarator was intented at the said Mr. Kincaid's instance within ten Years after the appearand Heir had purchased a Right to the said Comprysing The Lords tho there were no Order used did simul semel sustain the said Processes and appointed Compt and Reckoning and Auditors FINIS ERRATA in the Decisions PAge 4. lin 15. read rata p. 9. l. pâ—nult Pursuer 1 Person p. 15. l. 29. Laird of r. Lord. p. 17. l. 17. after him add but. ibid. l 26. after of add â— p 33 l 7. after Goods add The Reason was found relevant p. 35. l 21. r. conclude p. 37. l. 5. have 1. give p. 50 l. 9. after we add no. p. 51. l. 38. most r. more p. 54. l. 9. after anterior add to the Sones Right p. 58. l. 35. after Right add till p. 65. l. 11. purchase 1. possession p. 73. l. ult yet 1. so p. 74. l. 37. after to add an p. 75 l. 35. D ctor 1. Granter p. 84. l. 22 after confirmable add Quots of Testaments confirmed before the Act restoring Quots to the Bishops p. 85. l. 18. due r. done p. â—9 l. 18. after by add Writt or p. 105. l. 11. Donator r. Executor p. 108. l. 27. â—eu-duties r. Augmentations p. 111. l. 43. after Creditor add confirmed before the Act of Sederunt p. 17â— l. antep after flagitanti add â—eculaâ—e non potuit INDEX OF THE Pursuers and Defenders NAMES Mentioned in the foregoing Decisions A. ABercrombie contra Page 19. Abercrombie contra Atcheson and Livington Page 162. Aberdeen Colledge contra the Town thereof Page 130 133. Aberdeen Colledge contra Page 157. Abernethie contra Forbes Page 159. Act of Sederunt anent proponing Alledgances Page 74. Act of Sederunt anent liberation of Prisoners Page 114. Act of Sederunt anent Advocations Page 126. Advocats their â—â—int Petition Page 106. Aetskine contra Rynolds Page 164. Allan contra Campbel Page 28. Anderson contra Tarbet Page 56. Anderson contra Lowâ—s Page 149 160. Antrobus contra Anderson Page 32. Ardblair contra Wilson Page 214. Argyle Earl contra L Mcdonald Page 197. Argyle contra Menaughtan Page 203 213. Armstoun Lord contra Murray Page 153. Auchinleck contra E Menteath Page 127. Auchintoul contra Innes Page 88 B. BAillie contra Somervel Page 210. Bairdner contra Collier Page 142. Balmedie contra Baillies of Abernethie Page 54. Balmerinoch contra Tennents of Northbervick Page 90. Banchries Parochiners contra their Minister Page 124. Barclay contra Arbuthnet Page 151. Bavilay contra Dalmahoy Page 210. Bayne contra Carvie Page 71. Bernie contra Page 57. Bernie contra Montgomerie Page 137. Binnie contra Binnie Page 56. Binnie contra Sâ—ot Page 115. Binnie contra Brotherstones Page 124. Binnie contra Gibson P. 221. Binnie contra Farquhar P. 19. Bishop of Edinburgh his Executors contra the present Bishop P. 83. Bishop of Dumblain contra Kinloch P. 185. Bislet contra Broun P. 10. Blackwood contra Pinkill P. 221. Blair contra Blair P. 67. Blair contra Kinloch P. 151. Blair contra Fouler P. 182. Blantyre contra Walkingshaw P. 6. contra Blantyre P. 14. Bogie contra Executors of the Lady Oxford P. 73. Boid contra Storie P. 76. Bonars Relict contra his Representatives P. 141. Borthwick Lord contra Ker. P. 15. Borthwick Doctor contra E. Craufurd P. 161. Bowie contra Hamilton P. 18. Broun contra Veatch and Scot. P. 7. Broun contra Ogilvie P. 116. Bruce contra Bruce P. 132. Bryand contra Grhame P. 6. Buâ—hanan contra Logie P. 181. Burd contra Reid P. 118. Burgie Lady contra Strachan P. 39. Burnet contra Leyes P. 3. Burnet contra Johnston P. 9. Burnet contra Lutgrue P. 115. Burnet contra McCleilan P. 117. Burnet contra Swan P. 166. Burnet contra Gib P. 169. Bute Lady contra Sheriff thereof P. 7. C. CAmphel contra Tait P. 220. Carfrae contra TailÈiefer P. 104. Carnegie contra Durham P. 200. Carse contra Carse P. 17. Cassils contra Whiteford P. 24. Chalmers contra Ferquharson and Gordon P. 105. Cheap contra Philp P. 34. Cheyne contra Chrystie P. 19. Cheislie contra Edgar P. 181. Clerk contra Stewart P. 139 Colarnic Lady contra Tennents P. 112. Collector of the Taxations contra the Parson of Auldhamstocks P. 49. Colvil contra Feuars of Culross P. 28. Commissars