Town of Selkirk â— 15 Feb. 1668 Harlay con Hume 18 Iuly 1671 Harper con Hume 14 Ianuary 1662 Harper con Hamilton 29 Iuly 1662 Harper con Vassals 25 Iuly 1666 Harrowar con Haitly 13 Iune 1667 Hay con Hume 24 Iune 1662 Hay con Seaton 28 Iune 1662 Hay con Mâ—rison 17 Feb. 1663 Hay con Corstorphin 19 Iune 1663 Hay con Nicolson 16 Iuly 1663 Hay con Collector of the vacand Stipends 17 Iune 1664 Hay con Magâ—strats of Elgin 23 Novemb. 1664 Hay con Littleâ— Iohn 16 Feb. 1666 Hay con Magâ—strats of Elgin 12 Iune 1666 Hay con Magistrats of Elgin 5 Iuly 1666 Hay con Dowglas 10 Iuly 1666 Hay con Little-Iohn 14 Decemb. 1666 Hay of Strouie con Feâ—ars 22 Iune 1667 Hay con Drummond and Hepburn 26 Novemb. 1667 Hay con Town of Peebles 20 Ianuary 1669 Hay con Town of Peebles 19 Feb. 1669 Doctor Hay con Iameson 8 Iune 1670 Hay con Magistrats of Elgin 18 Iune 1670 Henrison con L. Ludwharne 22 Decemb. 1666 Henryson con L. Ludwharne 4 Ianuary 1667 Henryson con Henryson 31 Ianuary 1667 Henryson con Henryson 14 Novemb. 1667 Henryson con Birnâ—e 27 Feb. 1663 Henryson con Anderson 18 Novemb. 1669 Hepburn con Hamiltoun 12 Decemb. 1661 Hepburn con Hepburn 22 Ianuary 1662 Hepburn con Hepburn 25 Feb. 1663 Hepburn con Nisoet 16 Feb. 1665 Heretors of Don con Town of Aberdeen 26 Ianuary 1665 Heretors of the Milne of Keithick con Fewars 29 June 1665 Heretors of Don con Town of Aberdeen 29 Iuly 1665 Heretors of Johns-milne con Fewars 9 Feb. 1666 Heriots con Fleming Messenger and his Cautioners 19 Ianuary 1666 Heriot con â— Town of Edinburgh 25 June 1668 Hill con Maxwel 5 Feb. 1663 Hill con Maxwells 5 Decemb. 1665 Hogg con Hogg 2 Ianuary 1667 Hogg and others con Countess of Hume 3 July 1667 Hogg con Countess of Hume 10 Decemb. 1667 Hogg con Countess of Hume 10 Decemb. 1667 Humes con Bonnar 14 Decemb. 1661 Hume con Pringle 3 January 1662 Hume con 10 June 1665 Hume con the Tennents of Kello and Home 13 June 1666 1666 E. of Hume con Wodsetters 5 Iuly 1666 Dame Margaret Hume con Crawsoord of Kerse 10 July 1666 Hume con Creditors of Kâ—llo and Hume 12 Decemb. 1666 Hume con Tennents of Kello and Hume 24 Ianuary 1667 Countess of Hume con Tennents of Alcambus and Hogg 5 Feb. 1667 Hume con Creditors of Kello 28 Iune 1667 Hume and others con Hume 6 July 1667 Hume con Tennents of Kello 23 July 1667 Hume con Seaton of Meinzles 13 Ianuary 1669 Hume con E. Hume 14 Iuly 1670 Hume con Scoâ— 7 Feb. 1671 Hume con Lo. Justâ—ce Clerk 28 June 1671 Hume con Lo. Justice Clerk 4 July 1671 â— Hume con L. Ryslaw 18 Iuly 1671 Hospital of Glasgow con Campbel 19 July 1664 Howison con Cockburn 17 Novemb. 166â— Hâ—nter con Wilsons 13 Decemb. 1667 Hâ—nter con Creditors of Iohn Peter 11 June 1670 Marquess of Hunâ—ly con Gordon of Lesmore 22 〈◊〉 1665 Hutcheson con E. Cassals 3 Decemb. 1664 Hutcheson con Dickson 6 Ianuary 1665 JAck con Fiddes 24 Iuly 1661 Iack con Pollock and Rutherfoord 23 Feb. 1665 Jack con Movat 13 Iune 1666 Iack con Iack 15 Iuly 1669 Jack con Borthwick 2 Feb. 1670 Jaffray con Iaffray 4 Decemb. 1669 Jameson con Mcclied 3 Decemb. 1661 Ierdin of Applegirth con Iohnstoun of Lokerbie 24 Feb. 1670 Inglis con Hogg 22 Decemb. 1664 Inglis con L. Balâ—our 25 Iune 1668 Innes con Wilson 4 July 1665 Innes con Innes 5 January 16â—0 Johnstoun con Applegirth 7 Feb. 1662 Johnstoun of Sheenes con Broun 14 Iuly 1665 Iohnstoun con Mcgreegers 19 Iuly 1665 Iohnstoun con Tennents of Achincorse 22 Iuly 1665 Iohnstoun con Iohnstoun 21 Feb. 1667 Johnstoun con Cunningham 19 June 1667 Johnstoun con Sir Charles Erskine 6 Feb. 1668 Johnstoun con Paroâ—hioners of Hodonie 18 Iuly 1668 Iohnstoun of Sheenes con Arâ—old 22 Iuly 1668 Johnstoun con Sir Charles Erskine Lord Lyon 19 January 1669 Irwing con Mccartney 30 January 1662 Irwing con Strachan 24 Iune 1665 Iurgan con Capt. Logan 23 Iuly 1667 Iustice con Stirling 23 Ianuary 1668 Lo. Justice Clerk and Sir Alexander his Son con E. Hume 15 Iune 1670 Lo. Iustice Clerk con Fairholme 23 Feb. 1671 K Sir Iohn Kâ—â—th con Sir George Johnstoun 28 July 1671 Kello con Pâ—xtoun 3 July 1662 Kello con Pringle 31 January 1665 Kello con Kennier 5 January 1671 Kennedy con Hutcheson 8 July 1664 Kennedy con Weir 23 Feb. 166â— Kennedy con Agnew of Lochnaw 27 Iuly 166â— Kennedy and Muâ—e con Jaffray 24 June 1669 Kennedy con Kennedy of Cullen 8 Iuly 1670 Kennedy con Cunninghame and Wallace 12 July 1670 Ker con Parochâ—oners of Carriden 26 July 1661 Ker con Ker of Fairniâ—lie and others 9 July 1662 Ker con Hunter and Tennents of Cambo 8 Fâ—b 1666 Ker con Children of Wolmet 25 Feb. 1667 Ker con Ker 18 July 1667 Ker con Ker 5 Feb. 1668 Ker of Cavers and Scot of Golden-berrit Supplicants 6 January 1670 Ker con Downie 7 January 1670 Ker con Nicolson 28 January 1671 Kidd con Dickson 29 June 1666 L. Kilbirnie con Heiâ—s of Tailzle of Kilbirnie and Schaw of Greenock 20 January 1669 Lady Kilbocho con the L. of Kilbocho 20 Decemb. 166â— Kilchattans Credâ—tors con Lady 16 January 1663 Kincaid con L. Fenzies 26 Feb. 1662 E. Kincairn con L Rossyth 24 Feb. 1669 E. Kincairn con L. Pittarâ— 3 Feb. 1670 King's Advocat con E Mortoun 25 Feb. 1669 E. Kinghorn con L. Udney 3 Iuly 1666 E. Kinghorn con L. Udney 15 January 1668 Viscount of Kingstoun con Collonel Fullertoun 22 Feb. 166â— Kinross con L. Hunthil 10 Decemb. 1661 Kinross con L. Hunthil 25 July 1662 Kintore con Boyd 27 Ianuary 1665 Kintore con the Heir of Logan of Coaâ—field 9 July 1669 Kirkaldy con Balkanquell 9 July 1663 Kirktouns con L. Hunthill 12 Feb. 1662 Kirktouns con L. Hunthill 31 January 1665 L. Knaperin con Sir Robert Farquhar 9 Novemb. 1665 Kyle con Seaton 28 Iune 1665 L. Lambertoun con E. Levin 24 Iuly 1661 L. Lambertoun con E. Levin 3 and 11 dayes of Iuly 1662 L. Lambertoun con Hume of Kaimes 9 Iuly 1662 L. Lamingtoun con Chieâ—ly 29 January 1662 Lâ—nglands con Spence of Blair 17 Iune 1670 Langtoun con Scot 17 Decemb. 1670 E. Lauderdaâ—e con the Tennents of Swintoun 7 January 1662 E. Lauderdale con Wolmet 13 Iuly 1664 E. Lauderdale con the Viscount of Oxenfoord 11 Feb. 1665 E Lauderdale con Viscount of Oxenfoord last Feb. 1666 E. Lauderdale and Wachop con Major Biggar 7 Decemb. 1667 Laurie con Sir Iohn Drummond 18 Feb. 1670 Laurie con Gibson 4 Feb. 1671 Laurie con Sir Iohn Drummond 7 Feb 1671 Leckie con 20 Feb. 1663 Lâ—ith con L. Lismore and others 14 Iuly 1666 Lennox of Woodâ—head con Nairn 24 Iune 1662 Lennox con Linton 5 Feb. 1663 Lermont con Russel 9 Decemb. 1664 Lermont con E. of Lauderdale 12 Iuly 1671 Leslie con Gray 10 Ianuary 1665 Sir Iohn Leslie con Sinclar of Dun 22 Decemb. 1665 Leslie
THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
Annat it was not confirmed and could be extended to no more but the half of 1654. The Pursuer answered to the First That the Presbytrie had no power to dispose of that Steipend by the Act of Parliament 1644. because the Defunct was only Suspended ab officio which makes not the Kirk Vaick maxime seeing the Defunct was Reponed by the Synode and never desposed and as to the Decreet at the Defenders Instance it was given without calling the Defunct whom he was in mala fide to misken To the second That the Act of Prisbytrie cannot prove unless it had been subscribed by the Defuncts own hand matters of Steipend not being the proper work of Presbitries but proper for civil Judges especially seeing the Defunct was Suspended for Preaching for the Engagement 1648. Against which that Presbytrie protested and so the Act being Eairtester is the more suspect To the Third The Annat not being in bonis defuncti but indulged by the Law to the Wife Bairns and nearest of Kin to the Defunct Minister and so originally their Right though upon occasion of his Service the same needs no Confirmation and the Defunct having right proprio jure to the whole Year 1653. Surviving both Terms Anne signifying a Year further must be the heal Year one thousand six hundred fifty and four The Lords Repelled the first Defense and found the Suspension of the Minister not to make the Steipend Vaccand and had no respect to the said Decreet whereto the Defunct was not called They found also the second Defense not probable by the Act of Presbytrie and found that the Anne needed no Confirmation but that the Anne did only extend to half a Year more then the Defunct had right to proprio jure Laird of Lamirtoun contra Alexander Kennedy Farl of Levin Eodem die EOdem die The Laird of Lamertoun upon the Improbation mentioned Iuly 24. Did then desire that Alexander Kennedy producer of the six Bonds quarrelled might be examined in presentia and his Person Sequestrated and Secured and warrand granted to examine new Witnesses The Lords superceided to give answer till they considered the Process and now having considered the same and finding that the direct manner of Improbation was not Competent because the Witnesses were dead and that the Pursuer had insisted in the Indirect manner and had obtained warrand for Inspection of the Dispositions taken in the Cause both of Alexander Kennedy himself and of the Witnesses then adduced and had given in Articles of Improbation and the Defenders Articles of Approbation Replyes and Duplyes both which being considered by the Lords they found grounds of Suspitionâ— and therefore granted all the desires of the Supplication and Ordained Alexander Kennedy to be keeped close Prisoner in the Tolbooth till he were re-examined and Witnesses hinc inde to be examined by some of the Lords in the Vaccancy upon what either Parties should desire which seemed periâ—ent to the saids Lords Examinators Dame Elizabeth Fleming contra her Children November 14. 1661. DAme Elizabeth Flemming Relict and Executrix to Umquhile Malcome Flemming Merchant in Edinburgh and Tutrix dative to his Bairns having formerly pursued an Action of Exoneration against her Children in which she gave up as an Article of her Accompt a hundred pounds Sterling payed by her to Patrick Scot of Langshaw whereupon she had retired her Husbands Bond and taken a discharge upon the back thereof and had taken her Husbands name therefrom whereanent the Defenders alleadged That this being a cancelled Paper could establish no Debt against them neither could Patrick Scots discharge prove against them that it was a debt restand by their Father and payed since his death as Patrick's Testimony and Oath could not prove much less his Declaration in wri whereupon the Lords had ordained Patrick Scots Oath to be taken ex officio upon the truth of the Debt and when it was payed to him and by whom who having Dâ—poned that it was payed by this Pursuer after her Husbands Death The Lords did allow the Article Now the Cause being wakened at the Pursuers instance and Sir Iohn Gibson now her Husband one of the Clerks The Defenders further alleadged that Patrick Scots oath ought not to have been taken and could not be sufficient to prove against them that this was a true Debt and payed by their Mother but it behoved to be presumed if it was a Debt at all to have been payed by their Father and the Bond cancelled by him and left amongst his writs and found by their Mother there and now after her second Marriage made use of against her own Children albeit she made no mention of it before And therefore the cancelled Bond being no Writâ— subscribed by the Defunct cannot prove nor can Patrick Scot's Discharge or his Oath make it up nor any other thing except the Defenders own Oath or Writ seeing Witnesses are not admitted in cases of this Importance Secondly though it were Evidently and Legally Instructed and Proven yet the Debt was payed by the Mother she can have no allowance of it because she payed Voluntarly not being Tutrix nor Executrix at that time and cancelled it and took a discharge of it and so it is both unwarrantably done and must be presumed to have been of purpose to gift it to her Children out of her opulent Fortune having given above fourty thousand pounds to the second Husband The Pursuer answered That the alleadgances were most Irrelivant for as to the first anent the Probation of the truth of the Debt and payment by the Executrix It is sufficiently proven by the cancelled Bond at which the Witnesses Names are yet standing by Patrick Scot's Discharge and Oath already taken who is a Person inconcerned and above all exception and if need bees it is offered to be proven by many Witnesses above exception who saw the Bond un-cancelled after the Defuncts Death which is abundantly sufficient to take away the Presumption that it was retired and cancelled by the Defunct himself and that such Probation was Legal and Warrantable was formerly found by the Lords of Session upon the 7th of March one thousand six hundred twentie nine betwixt Falconer and Blair where an Executor pursuing the Hetr for relief of a moveable Debt produced only the Defuncts cancelled Bond without a discharge and these same points being alleadged The Lords found that the Action ought to be sustained and the truth of the Debt and the Payment after the Defuncts decease to be proven by the Creditors Oath or after his decease by the Heirs Oath and it is unquestionable That the Lords in matters obscure as to the Probation may ex â—obâ—li officio take all manner of Tryal for finding out the Truth by Oaths of Parties Witnesses or any other manner of way in matters of greatest moment which being here already done and the Testimony so clear and of so unquestionable a Person as Patrick Scot there remaines no doubt but the Debt was
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without 〈◊〉 had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâ—ige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâ—itantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
Second Answer upon the Act of Council it cannot prove against the Suspenders being only under the Town-clerks hand not being a Process upon Citation nor having a Warrnat subscribed by the Suspenders The Lords having considered the Bond in Question albeit they found the tenor thereof not to be contrair the Act of Parliament yet found the same was unwarranttably taken if the same was extortâ—d as aforesaid and found the Decreet of the Lords not to militat against the Suspenders or to warrand that incarceration brevi manu and found the Act of Council proved not agaiâ—st the Suspenders and yet Ordained them to renew a Bond by the Lords Authority of the like tenor Elizabeth Fleming and Sir Iohn Gibson contra Fleming and Robert Baird BY Contract of Marriage betwâ—xt the said Robert Baird and his Spouse he accepted 12000 merk in name of Tocher in satisfaction of all his Wife could succeed to by her Father Mother Sister and Brothers and discharged his Mother as Executrix and Tutrix thereof Yet she having formerly put more Bonds in the name of Roberts Wife then this Sum and there being no Assignation to the remainder in the Contract pursues the said Robert and his Spouse to grant an Assignation thereof and to pay what he had uplifted of the Sums more nor his Tocher The Defender alleadged the Summons are not relevant he neither oblidged ex lege nor ex pacto to Assign The Pursuer answered this being bona fidei contractus the meaning and interest of the Parties is most to be respected and therefore though it contains but expresly a discharge which cannot be effectual to lift the Sums from the Creditors but would loss them to both Parties he must Assign especially seing his acceptance of full satisfaction imports an oblidgment to denude himself of the superplus And which the Lords found relevant and sustained the Summons Walter Riddell contra Eodem die WAlter Riddell as Executor dative confirmed to one Liddell in the Caâ—nongate pursues his Debitors to pay compears a Donator as ultimus Haeres and craves preference The Pursuer answered First His Gift was not declared 2dly He offered to prove the Defunct had an Agnat viz. an Uncle or an Uncles Son Which the Lords found relevant to be proven by Witnesses Robertson contra Buchannan February 14 1663. RObertson pursues Buchannan to repay to him a sum of Money who alleadged that his Bond bearing to pay this Charger or to Arthur Buchannan his Brother it is alternative electiâ— est debitoris and he has compensation against Arthur which is equivalent as if he had payed him The Lords repelled this alleadgance and found that the Charger being deliverer of the Money and now haver of the Bond it could import no more but that the other Brother was adjected for the Chargers behove and that there is no option to the Debitor in such cases Mr. Iames Forsyth contra Archibald Patoun February 17. 1663. MR. Iames Forsyth as Executor Confirmed to his Sister pursues the said Archibald Patoun her Husband for payment of her third of his Free Goods at the time of her death The Defender alleadged First By the Deceased Wifes Contract of Marriage with the Defender she accepted a 1000 lib. for all she could crave by his decease in case there were no Bairns of the Marriage and albeit there was a Bairn surviving her yet the Bairn shortly thereafter dyed The Lords repelled this Defence and found that the Bairn surviving the Mother never so short was enough It was further alleadged absolvitor because the Deceased Wife having a Child surviving her her share belonged to that Child as nearest of Kin and the Child being dead belongs to the Defender the Childs Father as nearest of Kine to the Child and cannot go back to the Mothers nearest of Kin because there is no succession of Cognats in Scotland The Pursuer answered that if the Child had been Executor Confirmed to the Mother ad eundo haereditate would transmit the same to the Father but there being no Confirmation haerediâ—as mobilium jacebat and the Goods remain yet still in bonis defuncti maritis and albeit it was found in the case of Bells contra Wilkies that it was not necessar to transmit moveables that the Testament were execute yet in that case it was a Confirmation which was esteemed an addition The Defender answered that he had done diligence to have it Confirmed but during the Childs life all Judicatories were stopped and he had taken Instruments of his desire to be Confirmed and alleadged that as Bairns surviving would transmit their Legittime though they had done no diligence so this Bairn surviving alone was sufficient The Lords found that seing there was no Confirmation the Right was not established in the Childs Person and that the Right could not fall to the Father but fell to the nearest of Kin of the Mother and found it was not like a Legittime which is only of the Fathers means and not of the Mothers and hath a special priviledge in Law to be transmitted by more superviving Margaret Hay contra Sir Geoâ—ge Morison Eodem die SIR Geoege Morison having granted a Bond to Umquhile Iohn Bell and Margaret Hay the longest liver of them two in Conjunct-fee and after their Decease to the Bairns of the Marriage the said Margaret with concurse of the Bairns charges for Payment Sir George Suspends on this Reason that Margaret is but Liferenter and the Bairns of the Marriage are but Feears and therefore seing there was an Infeftment upon the said Bond he ought not to pay the Sum till the Bairns be Infeft as Heirs of Provision of the Marriage to their Father and renunce the Infeftment The Lords decerned but superseded the Extract untill the Bairns were Infeft as Heirs of Provision to their Father and did grant Renunciation and found that all the Bairns Male and Female joyntly and equally behoved to be Served as Heirs of Provision to their Father in this Annualrent and Infeft accordingly and that by Bairns was not to be understood the Heir of the Marriage only Colonel Iames Montgomery contra The Heirs of Robert Halliburtoun Eodem die IN a Declarator of Redemption of a part of the Lands of Collfield The Lords sustained the Order at the instance of the Collonel as being a Singular Successor albeit he produced not the Reversion at the using of the Ordor nor now seing the Defender compeared and he offered to prove by their Oath or their Curators that they had the Contract of Wodset in their hand both then and now Birsh contra Dowglas February 18. 1663. BIrsh an Inglish Woman pursues Catharine Dowglas to pay a Bond wherein she and her Umquhile Husband were oblidged The Defender alleadged absolvitor because it was a Bond stante matrimonio given by a Wife which is null in Law It was replyed it is Ratified Judicially and the Defender oblidged never to come in the contrare upon Oath Judicially which is the strongest
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right â—b non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
on Saturnday the whole Cruives might stand open So that no Fish might be taken thereby according to the old Statute of King Alexander from the Even Sun on Saturnday till the Sun rising on Munday The Lords found that the Saturndays slop ought to be of the whole Cruives and that from Saturnday at six a clock till Munday at Sunrising 5ly They Insisted for the Hight of the Cruives and alleadged that the same ought to be no higher then the water in its ordinar Course neither the time of the Flood nor of Drought otherwayes they might build the same as high as they pleased and that it ought not to be builded perpendicular which will hinder the Salmonds up-coming but slopping from the Ground to the top The Lords considering that there was no particular Law as to the hight of Cruives and that â—hir Parties had suffered the other to enjoy the Cruives above 40. Years that therefore the same should be uti possidebantur no higher then the old Cruives were 6ly They Insisted for the Liberty of the Midlestream beside and attour Saturndays Slop which is specially contained in the Acts of Parliament of King Alexander and King Iames the third and fourth and is renewed in the late Act of Parliament of King Charles the second The least quantity of which bears That five foot of the middle Stream must be constantly free It was answered 1. That the old Acts anent the midle Stream were wholly in desuetude and were in effect derogate by the Act of King Iames the sixt anent Cruives which ordains the Saturndays Slop to be keeped but mentions not the midle Stream And as for the late Act of Parliament it was Impetrat by these same Parties and never past in Articles or noticed by the Parliament but as an ordinar Confirmation It was answered that there was no prescription of publick Rights against standing Laws and albeit the desuetude of such Laws could be effectual yet the late Law Revives and Confirms them all per expressum which is not a particular Confirmation bearing mention of any particular Partie or particular Right but as a general Confirmation of general Laws anent all the Cruives in Scotland The Lords considering that the midle Stream has been long in desuetude and that this late Ratification was past without notice therefore before answer They Ordained the Parties to adduce Witnesses whether the midestream was accustomed in any Cruives in Scotland and whether the same would be beneficial or hurtful to the Salmond Fishing of the Kingdom in general and whether it were destructive to the Cruives in Common and likewise they gave Commission to examine the Witnesses hinc inde whether their new Cruives were builded upon challes or they otherways builded then the former Cruives to the prejudice of the Fishing above in the water George Hutcheson contra Dickson of Lonhead Eodem die GEorge Hutcheson pursues Dickson for a Sum of moneyâ— and for the Annualrent since the denunciation of the Horning Whereupon the Defender answered that the Horning was only at the Mercat Cross of Edinburgh where the Defender dwelled not and so was null and could not give Annualrent It was answered that albeit such Hornings be not sufficient for an Escheat yet they are sufficient for Caption and so are not null and therefore Annualrents having so much ground in equity and by the civil Law being due ex mora such denunciations should be sufficient for Annualrent The Lords found such Hornings null and would not allow Annualrent Logan contra Galbraith Eodem die LOgan charges Galbraith to remove from a House who Suspends and alleadges that she is Served and Kenned to a Terce of the House which Terce she brukes pro indiviso with the two thirds The Charger answered the Reason ought to be repelled because albeit the Defense pro indiviso be relevant against such who can obtain division It being their own fault that they do not first divide or they pursue Removing but where it is a House being unum tenementum indivisibile the Heir or Successor of the Husband who has two thirds and continues in his Possession as well as the Relict in her third ought to be preferred in the Possession quia majus trahit minus The Lords found the answers relevant to elide the Reason and decerned the Relict to remove with this quality that if the Feear did not dwell in the House himself the Relict should be preferred giving as much Mail as any other Tennant and giving Caution for the two part Lairds of Berfoord and Binstoun contra Lord Kingstoun Ianuary 21. 1665. BErfoord and Binstoun pursues the Lord Kingstoun for Spuilzie of certain Corns he alleadged absolvitor because he Legally drew the same as their Teynd by vertue of his Tack from the present Minister and Inhibition thereon It was answered First That was not sufficient summarly to draw the Defenders Teynds unless there had been a Sentence on the Inhition which is but as a warning and so must not infer Removing brevi manu ad vitandum tumultum 2ly If he had Legally pursued them for a Spuilzie they would have alleadged and now alleadge that they have Tacks standing from the Minister for the time who though deposed yet lives and all incumbents Tacks serve during their natural life and no Tack from the next incumbent Prejudges during the life of the former conform to an expresse Act of Parliament The Defender duplyed that albeit an Act of Parliament required removing not to be summarly in Lands it did not so in Teynds 2ly The Pursuers Tacks are null without consent of the Patron The Pursuer triplyed that they are standing cled with seven years possession and their Tacks are subscribed by the Patron Quadruplyed he was not then Patron but was standing Fore-faulted unrestored Quadruplyed it is sufficient coloratus Titulus cum possessione till the Reduction And the Lord Bothwells Son Patron was after restored whereby it revived The Lords repelled the Defense in respect of the Pursuers Tacks and found the Defender might not brevi manu intromet there being any pretence of Title but they desired the Pursuer to restrict to wrongous intromission and without Oath in litem Sir John Scot and Walter Scot contra Sir John Fletcher Eodem die WAlter Scot as being Assigney by Sir Iohn Scot of Scotstarvet to an Atlas Major of the late Edition pursues Sir Iohn Fletcher for delivering thereof as belonging to the Pursuer and now in his hand The Defender answered non Relevat unlesse it were condescended quâ— Titulo for if it came in the Defenders hands by emption or Gift it is his own and in mobilibus possessio presumit Titulum seing in these Writ nor Witnesses uses not to be interposed and none can seek recovery of such unless he condescend quo modo desijt possedere else all commerce would be destroyed and who ever could prove that once any thing was his might recover it per mille manus unless they instruct their
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary â—but in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâ—â—â— upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
were Infeft yet there may be Inhibition anterior Reversion or Trust or nullities in their Right and if these were denyed they behoved to be instructed and so Terms of Probation run while in the mean time the anterior Diligence of others Appryzings in the countrey before the Sheriff would prevent them and it would hinder any Appryzings ever to be deduced at Edinburgh and it were hand to put Creditors who knew not there Debitors Charter Chist to disput their Rights as in an executive Process But the Lords inclined that Sir Johns Infeftment should be rather produced and reserved out of the Appryzing then the Appryzing stopped Falconer contra Earl of Kinghorn Eodem die FAlconer pursues the Earl of Kinghorn for payment of a Bond wherein his Father was Cautioner It was alleadged the Bond was null as to Kinghorn because it mentioned in the first place three Witnesses to another Parties Subscription per expressum mentioning two without their designation or expressing whether they were Witnesses to either or both the two Cautioners and therefore the Bond was null by the Act of Parliament It was answered that according to the ordinar custome they offered to design It was Replyed that the designation behoved to be of living Witnesses for seing in it self the Bond is null by the Act of Parliament and that the Lords by custom have supplyed such Bonds per equivalentiam The intent of the Act of Parliament being only that by the Designation the Witnesses might be known and thereby a means of improbation afforded if the Writ were quarrelled but after the Witnesses are dead the Degsination of them cannot attain that effect The Lords Ordained the Pursuer to Design living Witnesses or otherways to condescend upon other Adminicles to astruct the verity of the Subscription of the Bond. Beg contra Beg. February 4. 1665. THomas Beg in Edinburgh having a Son of his first Marriage and providing his Children of two subsequent Marriages to his Means The Son of the first Marriage pursues his Father for his Mothers third and craves Annualrent therefore he being Minor and his Father his Tutor of Law and therefore lyable as other Tutors for Annualrent Which the Lords found relevant Paterson contra Pringle Eodem die ISobel Paterson having lent to Pringles Wife a 100. lib. scots and having received a Bond of Pringles in Pand thereof he thereafter seeking a sight of the Bond took it away without warrant whereupon she obtained Decreet against him before the Commissaries which He and his Wife Suspended on this Reason that he never borrowed any Sum from the Charger and if his Wife did borrow the same he knew nothing thereof or that it was applyed to his use and that she Impignorat his Bond without his knowledge or warrant The Lords found that her having of the Bond in her hand did infer a warrant to borrow the Money and oblidge her Husband being a matter of small importance Peter Pallat contra Thomas Fairholm â— February 7. 1665. THomas Fairholm Merchant in Edinburgh having written a Letter to Peter Pallat Factor at Burdeoux to Loaden him 30 Tun of Wine The tenor of the Letter is that in respect Fairholm was not acquainted with Pallat he had written upon the Credit of his Brother Ninian Williamson Factor at London who was Pallats ordinar correspondent to Load these Wines in that Ship which carried the Letter upon Fairholms accompt and bore That Williamson had Provisions to satisfie the same and that he would either remit to Pallat or draw upon him as he found convenient This Letter being sent under a cover of Williamsons to Pallat the Wines were sent into Scotland and Williamson broke about a year thereafter whereupon Pallat pursues for his Money from Fairholm who alleadged absolvitor because he having demanded the VVines not upon his own Credit but Williamsons and Williamson having sent under his own cover as Pallaâ—s Letter bears the said Order in which there being mention that Williamson had Provisions in his hand his sending the Letter of that Tenor under his own cover is an acknowledgment that he had those Provisions and thereby he constitute himself Debitor to Pallat and freed Fairholm likeas Pallat acquiesced therein and drew Bills upon Williamsonâ— which were accepted but not payed and was silent never demanding Money from Fairholm till Williamson was broken so that first Fairholm is free by the tenor of the Letter and next though thereby he had been bound yet the damnage sustained by Pallats silence till Williamson was broken whereby Fairholm was hindred to draw his Provisions out of Williamsons hand and thereby lost the same through Pallats fault ought to compence Pallat and exclude him Pallat answered to the first that he opponed the Letters which bore expresly the Wines to be sent for Fairholms accompt so that albeit it mention Williamsons Credit and that he had Provisions it makes him but expromissor and liberats not Fairholm as to the second anent the damnage Pallat being secured both by Fairhlom and Williamson might at his option take himself to either or to both and cannot be accompted to have done any fault in forbearance of either though an unexpected accident of Williamsons breaking interveened so much the more as Fairholms Letter does not order to draw upon Williamson but bears That Fairholme would either draw or remit at Williamsons conveniency So that Pallat has not failed in the strick observance of the Order And if need be Pallat offers him to prove by the custom of Merchants in the most eminent places abroad that such Letters did never liberat the Writer And Fairholm offered to prove that such Letters did liberat the Writer unless the receiver had protested and intimat to the Writer that he would not acquiesce therein simply but also in the Credit of the Writer The Lords found that the Letter did not liberat Fairholm notwithstanding of his forbearance to demand and therefore repelled the Defenses and decerned but liberat Fairholm from the exchange and re-exchange in regard of Pallats silence neither would the Lords delay the matter upon the opinion of Merchants David Graham contra George Bruce and Doctor Mairten Eodem die DAvid Graham upon the sight of a Bond unregistrat of George Bruces obtained Arrestment and therewith Arrested a Sum in Doctor Martines hand which was loosed and after the loosing Assignation being made by George Bruce to his Sister In which case the Lords found That the Arrestment being upon the Bond before Registration might be loosed and notwithstanding of the loosing seing it was not now payed by the Debitor they ordained it to be made forthcomand to the Arrester and preferred him to the Assigney albeit it was alleadged that the tenor of the Arrestment was but till Caution was found which being found albeit the Debitor could not oppose to make it forthcoming yet an Assigney after loosing the Arrestment may let The Lords considered that the Caution found in loosing Arrestments is overlie and insufficient
Terms run in the third unpayed the Tack should expire and be null ipso facto without Declarator It was answered that notwithstanding clauses so conceived The Lords hath been accustomed to put them to Declarator in which case they have the priviledge to purge the Failzie at the Bar and if need beis the Defender will now purge The Lords found the reply relevant in respect of the conception of the Clause and would not suffer the Defender to purge for albeit in Declarators against Feues ob non solutum canonem the Lords will suffer the Defenders to purge at the Bar when the pursuite is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is exprest in the Infeftment so Proprietars may pursue their Tennents for failzing to pay the Duties of their Tack and to find Caution in time coming else to remove when there is no such Clauses Irritant and then they may purge but when the Clause Irritant is exprest there is far less reason they should have liberty to purge in Tacks then in Feus where the penalty is much greater Pringle of Torsonce contra Ker of Sunderland-hall February 17. 1665. PRringle having appryzed the Right of a Wodset from the Heirs of Sir George Ramsay does thereupon require and charge for the Money It was alleadged that he cannot have the Wodset Sum unless he not only Infest himself in the Wodset and renounce the same but put the Defender in peaceable possession as he did possesse the Wodsetter from whom the Pursuer appryzed and who can be in no better Case then the Wodsetter himself The purâ—uer answered that he was willing to renounce all Right and Possession but could not put the Defender in Possession because a thrid Partie had intruded himself without the Pursuer or his Authors Fault and the Wodset being but a Pledge the Hipothecar is not lyable contra vim majorâ—m but only pro culpa lata levi Therefore if a Pledge be taken away by force it hinders not the Creditor to demand his Sum. The like must be in intrusion which is an Act of force and the Pursuer who hath only his Annualrent is not oblidged to consume the same upon recovery but the Defender may do the same The Defender answered that whatever might be alleadged in the Case of Intrusion if in continent the Wodsetter had intimate the same and required his Money yet this intruder has continued a long time The Lords found the defense and duply relevant to stop the payment of the money till the possession were delivered seing the intrussion was ex inter vallo James Butter contra Gray of Balbrino Eodem die JAmes Butter having pursued Gray for payment of a Sum of Money he alleadged prescription because fourty years had run from the date of the Bond being the last of December 1624. before any Judicial Act or other interruption done thereon The Pursuer replyed that he had cited the Defender upon the first Summons upon the 24 of December 1664. which was six days within the fourty years from the date 2ly It was much more within the 40 years from the Term of payment of the Bond from which only and not from the date prescription runs quia contra non valentem agere non currit prescriptio The Defender answered that the citation on the first Summons was not sufficient unless there had been an Act of Continuation or some Judicial Act within the 40 year Because the Act of Parliament bears expresly If the Creditor follow not and take document within 40 years the Bond shall expire The Lords found the reply relevant and that the Citation on the first Summons was sufficient being within 40 years of the term of payment Sir John Baird contra Magistrats of Elgine Eodem die SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel escaping out of their Prison who alleadged absolvitor because the Rebel had the benefit of the Act Debitor and Creditor and produced the Clerk of the Bills Certificat thereupon when he was offered to Prison and being Imprisoned joyntly for an other Debt The Magistrats protested that they excepted him not prisoner for this Debt It was answered that the benefit of the Act contains an express nullitie if the Annualrents be not payed conform thereto The Defenders answered that they could not be Judge to the discharge and that upon the like case of a Protection of the Kings the Magistrats of Strivling were liberat The Lords repelled the Defense unless the Clerks attest the discharge had been first produced or shown to the Magistrats before the Prisoner was let go In which case they might either have refused him or let him goe free Marquess of Huntly contra Gordoun of Lesmore February 22. 1665. THe Marquess of Huntly as Donatar to the Forefaulture of the Marquess of Argyle as to the Estate of Huntly obtained Decreet of Parliament against Gordoun of Lesmore for payment of the Mails and Duties of certain Lands and for removing therefrom He Suspends on these Reasons First That the Decreet was null not preceeding upon lawful Citation but far fewer dayes then is appointed by Law and that he was absent and now alleadges that his Right to the Lands in question was by excambion with the Marquess of Argyle for Lands holden of the Marquess of Huntly which he had possessed thirtie or fourtie years before and thereefore if the Pursuer were dispossessed of the Lands in question he behoved to possesse him in other Lands 2ly The Decreet is null as not proceeding upon tryal of an Inquest cognoscing the Marquess of Argyle Heretable possessor five years before conform to the Act of Parliament nor could that be cogâ—oâ—â—ed because the Defender himself was Heretable possessor these years 3ly The Defenders Right from the Marquess of Argyle albeit it was post comissum crimen yet the cryme was latent proceeding upon missive Letters of his that was found out of the English hands which the Defender could not know The Pursuer answered to the whole that he opponed the Decreet of Parliament which ought not to have been Suspended by the Lords of Session who are not Judges to Decreets of Parliament who may dispence with the Dyets and Solemnities of Law and the Pursuer insists not upon the benefit of the five years possession but upon this ground that the Defenders Rights from the House of Huntlie or from Argyle were holden base of Argyle and not confirmed by the King and therefore by the Forefaulture of Argyle the Superiour who by his Right came in Huntlies place these unconfirmed base Rights fall Which the Lords found relevant and in the same Process Mails and Duties being but generally decerned without expressing the quantities The Lords ordained the Pursuer to condescend upon the quantities and gave him a term to prove Viscount of Kingstoun contra Collonel Fullertoun Eodem die THe Viscount of Kingstoun pursues Collonel Fullertoun upon the
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
any burden and Liferenters who having a speciall Competent Provision this general Clause being but adjected as uncertain is not so favourable or so to be extended seing the Husband did not Infeft the Wife in his own time in the Conquest And therefore found her to be lyable to the Annualrent of this Sum which they found instructed by the Hubands Declaration where the Ladies Father is a subscribing Witness Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die WAlter Young Iohn Govan and Hendrie Hope by a Letter written to any that they should Buy Kows from in the Highlands desired that they might use the Bearer of the Letter kindly and for whatever quantity of Kows they bought they should answer such Bills as he should draw upon them therefore Hendrie Hope being broken Iames Gray as Assigney pursues the other two for the whole who alleadged they were only lyable for their own Parts It was answered that they were oblidged to answer such Bills as the Person intrusted by them should draw and they produce a Bill drawn by him upon them or either of them It was answered that such Bills can only relate to the Quantity and not to the Quality and manner of oblidging seing if they had so intended they would have oblidged them and either of them or it would have born what he should draw upon them or either of them should be answered The Lords found every one of them lyable in solidum for they thought that the Clause being dubious was to be interpret against the Writers and the Sellers of the Kows were bona fide to rest upon the interpretation of the Persons intrusted Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665. SIr Iohn Leslie as Assigney constitute by Sir William Dick to a Bond oblidging Francis Sinclar as Principal and young Dun as Cautioner to deliver 30 Chalders of Bear at 10 merk the Boll Dun alleadges absolvitor because he was Minor in Familia Paterna and so his Father was his Curator of Law and therefore his subscribing as Cautioner was null being without his Fathers consent It was answered the alleadgeance was not competent by exception against a clear liquid Bond. Secondly That the Defense is only competent in the Case of Curators chosen The Lords found the Defense Competent by way of Exception but before answer to the Relevancie ordained the Parties to condescend upon Duns age the time of his Subscription and whether he did then administrat or go about any other affairs Dame Rachel Burnet contra Lepers December 23. 1665. BY Contract of Marriage betwixt Mr. Iohn Leper and his Father and and Dame Rachel Burnet on the other part both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel who with concurse of Prestoun her present Husband pursues the Sisters of the said Mr. Iohn Leper as Heirs and otherwayes representing him and their Husbands for their entrests and likewise Doctor Balfours Wife only Daughter of an of the Sisters as Heir to her Father and Mother against whom there was Decreet of Registration obtained during their Lifetimes together and on this ground That the Defuncts Husband did by Contract of Marriage Disposition or otherwayes obtain Right to the Portion of his Wife one of the Sisters and Heirs and therefore is lyable in payment in quantum lucratus est It was alleadged for Doctor Balfour and his Wife that she was willing to renounce to be Heir to her Mother but as for the other passive Title as representing her Father who was locupleâ—ior factus it is no wayes relevant for Marriage is a cause onerous and Tochars are granted ad sustinenda onera matrimonij and therefore are never counted fraudulent deeds or without an onerous cause nor do they fall within the Act of Parliament 1621. against fraudful alienations neither was the Defenders Father lyable though there was a Decreet of Registration against him because before any Execution the Marriage was dissolved It was answered for the Pursuer that that member of the Lybel stands relevant because the Defenders Mother being Heir to her Brother the Contracter could not transmit her Estate to her Husband without the burden of her Brothers Debt and it is a most unquestionable Ground in Law and Equity quod nemo debet cum alieno damno locupletari and therefore Creditors are still preferred to Portions of Children though given for their Tochar The Lords found that Member not Relevant that Decreet was obtained against the Husband and Wife stante matrimonio seing it received not Execution and as to the other Member they thought that if there were but a moderat and ordinar Tochar proportionable to the burdens of the Marriage it would not infer Repitition or if the Tochar was great or an universal Disposition of all the Heirs Right they thought the Husband would be lyable in so far as it was above a proportionable Tochar and therefore before Answer Ordained the Contract of Marriage to be produced and the Pursuer to condescend if there was any other benefit accresced to the Husband by his Wife then by vertue of the Contract It was further alleadged for the Lady Pitmedden one of the Sisters on Life that she could only be lyable for her own sixth part as one of the six Heirs Portioners It was answered by our Law that all Heirs were lyable in solidum There was several Decisions alleadged on either hand on the 7. of February 1632. Hoom contra Hoom Where the Lords found the Heirs Portioners lyable but for their own share Another February 15. and March 21. 1634. Watson contra Or Whereby one of the Daughters having a Disposition of the whole Estate was found lyable for the whole Debt And another Ianuary 24. 1642. Where one of the Heirs Portioners having Disponed her share to the other and thereby being insolvent that other was found lyable in solidum The Lords having considered the Case found the Heir Portioner lyable iprmo loco only for her own share untill the rest of the Heirs Portioners were discust but determined not whether these who were solvendo should be lyable in solidum albeit the Debt exceeded their Portion or only intirely for their own share and for as much more as the value of their Succession could amount to Laird of Cesnock contra Lord Bargany Eodem die THE Laird of Cesnock and the Lord Bargany and Balcarras being bound conjunctly and severally in a Bond Cesnock being distressed for the whole takes Assignation and pursues Bargany for two thirds who alleadged payment and because it was a publick Debt he produced an incident in termino which the Lords sustained not because it buire no warrand to cite Cesnock the Principall Partie and the Executions were within 48 hours by one Person in Kyll Renfreu Fyfe and Edinburgh and so suspect but they superceeded Extract of the Decreet to the first of November contra Wilson and Lodwick Callender
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of â—imulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ— thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be â—lided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâ—lvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself as
Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ— Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to â—e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ— that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâ—amento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâ—io mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
before Declarator obtained as being rigorous and penal and so abiding the Lords Modification as well as Penalties in Bonds Modified of consent of Parties especially in this case where the performance is not of a single liquid sum but comprehends a general Clause of all Debts that were or should be after due The Defender answered that Clauses Irritant in Wodsets are not rejected by our Law but are valide only where Declarators are requisit The Lords may Reduce them to the just Interest of Parties before Declarator But here there needs no Declarator because the Defender is in Possession and may except upon the Clause Irritant committed and the Clause bears to be Effectual without Declarator and albeit this Clause could now be Reduced to the just Interest it is only this that seing Tullibardine hath sold the Land the Defender should give as great a price as it is sold for to Sir Iohn Drummond which the Defender is willing to do The Lords sustained the Order in so far as it is at the Instance of Tullibardine but not as to Sir John Drummond but prejudice to Sir John Drummonds Disposition They found also that this Clause Irritant might be purged now at the Bar or any time before Declarator which is always necessar though Renunced that medio tempore Parties may purge And the Lords inclined that Ochtertyre should have the Lands for the Price Sir John Drummond gave which is eighty eight thousand merks but upon Examining him and my Lord it appeared that my Lord had offered the Land to him re integra and that he had never been special as to so great a Price as this but only general that he would give as great a price as any other would give which they thought not sufficient seing any other thereby would be scarred from Bargaining Executors of Lady Pilton contra Hay of Balhousy Feb. 2. 1667. MR. Francis Hay granted a Bond to his Wifes Sister the Lady Piltoun bearing That for good Considerations he obliged him to pay her a 1000 merks yearly during her Life with this Provision that it should be Leisum to her to Employ the same for the Abuliaments and Ornaments of her Body or any other use she pleased and but any Right and Interest in her Husband thereto jure mariti her Executors do now pursue Balhousie as Heir for payment who alleadged-Absolvitor because he had payed to Piltoun her Husband and albeit it was provided that it might be leisum to his Wife to Dispose upon the sum yet she had not done it but the Husband had provided her with all Abuiliaments necessar It was answered that the Husbands jus mariti was excluded by Mr. Francis himself And whatever might be alleadged of what belongs to a Wife proprio jure that nothing more can remain with her but her necessary Aliment and all the rest being in the Person of the Wife doth return to the Husband jure mariti albeit the jus mariti were renunced in her favours yet the Right here is freely given by a third Party excluding the Husband which third Party might gift with what Provisions he pleas'd and his gift returns to himself unless these Provisions be observed and this must be thought to be a gift seing it bears no Cause onerous It was answered that it bears good Considerations and Expresses not to be a Gift or done for love and favour 2ly If the Gifter were opposing the Husband or his Creditors Right and making use of that Provision that his Gift might return seing the Provision was not keeped it might have weight but here the Donators Heir makes not use of the Provision but concurreth with the Husband and payeth him The Lords found the payment made by the Donator or his Heir to the Husband Relevant to exclude the Executors of the Wife Pourie contra Dykes Eodem die UMquhil Dykes having Subscrybed a Bond to Pourie of this Tenor That he acknowledged himself to be resting to Pourie 56 pounds yearly as the annualrent of a 1400 hundred merks which sum of 56 pounds he oblieged himself to pay yearly This was the Tenor of the Bond whereupon Pourie pursued Dykes his Successors not only for the payment of the annualrent but for payment of the principal sum of 1400 merks alleadging that she being but a simple Woman had entrusted Dykes with the drawing of the Bond and he had deceived her and not mentioned the payment of the principal but that the acknowledgement that the Annualrent was due as the Annualrent of 1400 merks behoved to infer that the 1400 merks was also due this Ticket being holograph without Witness there was no clearing of the meaning by the Witnesses insert Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses as she would use for clearing of the same She adduced an Instrument bearing Umquhil Dykes upon his Death-bed to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause and that it was through his neglect or unskilfulness all the Witnesses in the Instrument being now dead the Nottar and he who is mentioned as Procurator to have taken Instruments in the Pursuers Name were Examined both acknowledged that Dykes had exprest his mind in the matter before them but they were contrary in the particular the Nottar Deponed conform to the Instrument but the Procurator Deponed contrary that the woman had quite the principal sum and had taken her to the Annualrent The Lords having considered the whole matter And first Whether the Ticket could import that the principal sum was due They found neither by the Ticket nor by the Instrument that that could be Instructed They considered next Whether the Annualrent was due during the womans Lifetime only or as a perpetual Annualrent to her her Heirs or Assigneys The difficulty was that the Obligement bore that Dykes should pay the Annualrent yearly but did not express neither to her her Heirs nor Assigneys but simply in these Terms To pay the 56 pounds yearly Which the Lords found to carry a perpetual Annualrent though Heirs and Assigneys were not exprest Lady Traquair contra Marion Houatson Feb. 5. 1667. THe Lady Traquair pursues Marion Houatson for the Mails and Duties of a part of the Liferent-Lands who alleadged Absolvitor because her umquhil Husband who was immediat Tennent to the umquhil Earl had bona fide made payment to him Likeas the Defender being only Sub-tennent to her Son had bona fide made payment to her Son of her Duty The Pursuer answered that neither of the Alleadgances were Relevant because any payment that was made by the Defender or her umquhil Husband was before the Term of payment and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides neither could it prejudge the Pursuer The Lords were all clear that the payment made by the principal Tacks-man before the Term was not Relevant but as to the payment made by the
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâ—s by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâ—ed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâ—io jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ— Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not at
sisti but also judicatum solvi that he may be ordained to do the same before the Lords Which the Lords refused but granted the Advocation in common form Sir Robert Montgomery contra Alexander Rankein November 23. 1667. SIr Robert Montgomery having obtained Decreet against Antonia Brown as representing Sir Iohn Brown her Father for two thousand Merks Arrests the price of a chain due to Antonia in the hands of the Lord Melvil and pursues to make forthcoming Compears Alexander Rankein and produces a Decreet obtained against Antonia and thereupon an Arrestment by the Sheriff of Fifes Precept and a Decreet of the Sheriff thereupon in July last the Arrestment being in the same Moneth and craves preference because he had the first compleat Diligence It was answered that Sir Robert having first Arrested in March last and first intented Processe thereupon before the Lords and having insisted therein the last Session was kept off by the compearance of the Lady Cullerny who also pretended Right to the Chain and has failed in no Diligence and therefore ought to be preferred to a posterior Arrestment albeit it have the first Decreet of an inferiour Court both Arrestment and Citation being after his for he having affected the Sum by an Arrestment the matter became litigious and no posterior Diligence nor Sentence of an inferiour Court could exclude him he using all Diligence before the Supream Court and not living within the Sheriffs Jurisdiction and the Sheriffs Decreet being only in absence otherwise no Process upon any Arrestment before the Lords can be secure but others may anticipat them by obtaining Decreets before inferiour Courts which are far sooner obtained It was answered that it was not the Arrestment but the Sentence to make forthcoming that transmitted the Right as being a Judicial Assignation and therefore the first Decreet is preferable for as Poinding might have been used upon the Sheriffs Precept notwithstanding of a prior Arrestment and Dependance before the Lords so must the Sheriffs Decreet which is equivalent have the same effect and Sir Robert ought to impute it to himself that took not the shortest way in pursuing before the Sheriff The Lords found the first Arrestment pursued before themselves sine mora and the first Citation preferable to a posterior Citation and Arrestment though obtaining the first Decreet and therefore preferred Sir Robert Montgomery and would not bring in the Parties pari passu the first Arrestment and Citation being several Moneths before the other Lord Iustice Clerk contra the Laird of Lambertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods and Planting in the beginning of the Troubles the Parties did agree that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde the one half thereof should be payed by Lambertoun The Lords granted Commission to five of their Number who Examined Witnesses upon the place three of the Pursuers Witnesses proved the half of the Damnage to be eleven thousand Merks and gave clear Reasons of their knowledge two of them were used by the Defender also and two or three of the Defenders other Witnesses Deponed that the whole Damnage was about two thousand Merks and a third ex auditu agreed in some points At the Advising of the Cause the question arose whether the Lords might modifie betwixt the two Extreams or if they ought to Judge according to any two of the highest Testimonies or according to the most pregnant Testimonies giving the clearest ground of their Knowledge The Lords found the most pregnant Testimonies to be the Rule and Decerned according to the least that the Pursuers Witnesses did prove as being that wherein all did agree and not according to the most quantities that some proved Mr. Iohn Hay of Haystoun contra Mr. Iohn Drummond and Patrick Hepburn November 26. 1667. MAster Iohn Hay having pursued a Reduction of the Rights of some Lands against Mr. Iohn Drummond and called for the Rights made to him by Umquhil Patrick Hepburn Mr. Iohn Drummond got three Terms to produce reserving his Defenses and at the last Term alleadged no Certification against the Rights granted by Patrick Hepburn because none to Represent Patrick Hepburn were called a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn whereupon he Cited Patrick Hepburn his eldest Son and appearand Heir who having gotten one very short Term and that circumduced against him It was now alleadged that all the Terms ought to be granted to Patrick Hepburn seing he was a Party necessar to be called and his Rights were to be Reduced The Pursuer answered that this being a single Reduction de jure there was no more due but one Term. 2dly Albeit more were due yet Mr. Iohn Drummond having run three Terms already he can crave no more but one upon the account of Patrick Hepburn his Author The Lords in respect the Term Assigned to Patrick Hepburn was but on six dayes allowed him a second Term and ordained it to be Intimat by the Ordinar to the Advocats that in single Reductions of Rights of Lands they would grant two Terms for production and in Reductions and Improbations three only Captain Bood contra George Strachan November 28. 1667. CAptain Bood Captain of one of His Majesties Friggats pursues George Strachan who had Commanded that Friggat for a time and was sent a Voyage therewith from Brassie-found to London to restore a part of the Out-reick of the Ship which he had not Delivered but had excepted in his Discharge as being worn stollen or lost and now it was offered to be proven that he Sold and Disponed upon the same particulars he so reserved The Defender alleadged Absolvitor from such particulars as he condescended upon because he did waire out a considerable Sum of Money fot Repairing the Out-rige and necessars to the Ship during the Voyage for which in case of necessity he might have Sold a part of the Out-rige 2dly Albeit he might not have Sold the same yet he may retain or compence the price thereof with what he waired out necessarly and profitably for the Out-rige of the Ship 3dly He offered him to prove that such parts of the Out-rige in questionâ— as he should condescend upon were worne and stollen which being his Defense he ought to be preferred in the Probation unto the Pursuer who ought to have no other Probation against him being a Person Intrusted but his own Oath much less a contrair probation by Witnesses that they were not Lost but Disposed upon by the Defender The Lords Repelled the first and second Defenses and found that albeit the Captain might have Hypothecat his Ship or Out-rige for the necessar Expences waired upon her yet that he could not Sell the same and that de facto he did not Sell the same because the Pursuer offered to prove he Sold them at Lieth after his Return and found the same probable by Witnesses
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ— put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâ—ar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books â—nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nâ—t for the Damnage and Interest neâ—â—her against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ— first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâ—ved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
upon consideration of the Pasturage without which it could neither give the Rent it payes nor the Price so that when my Lord Dispones the Lands with the Pertinents and at the time of the Disposition this Pasturage is unquestionably Possest as a Pertinent of the Land the extended Charter and Disposition ought in all Reason to comprehend it expresly neither is there any difference whether the Pasturage be of a Moor contiguous or belonging to the whole Barony seing it cannot be Contraverted but it was Possest as Pertinent of this Room the time of the Bargain and to clear that it was so Possest the Charger produced a Wodset granted by the Lord Borthwick to himself of the same Room bearing expresly Pasturage in the common Moor of Borthwick The Suspender answered that the Wodset made against the Charger in respect this Clause being express in the Wodset he had not put it in the Minut which as jus nobilius absorbed the Wodset and cannot be looked upon as a Discharge of the Reversion only because my Lord was Superior by the Wodset and by the Minut he is to Resign likeas in the minut there is a Disposition of the Teinds which is not in the Wodset The Lords found that the Minut ought to be extended bearing expresly the common Pasturage in the Moor of Borthwick in respect the same was a Pertinent of the Lands Sold the time of the Bargain and was not excepted Sir George Mckenzy contra Iohn Fairholm Eodem die SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him as Cautioner for his Father in his Minority It was alleadged for Iohn Fairholm that he could not Reduce upon Minority because he had Homologat the Bonds after his Majority in so far as he had accepted Discharges of the Annualrent bearing Deduction of the Bond by his Father as Principal and him as Cautioner and Discharging them both which Discharges Sir George himself did Receive from Iohn Fairholm and payed the Money Sir George answered that the Discharges do not bear that he payed the Money but bears that the same was payed by the Principal Debtor and his Receiving of a Discharge not having payed cannot import his Homologation or acknowledgement of the Bond for to prevent question and trouble one may take Discharge of what he denyes to be Due and the Bond being then standing Unreduced he may well accept a Discharge not knowing the event of the relevancy or probation of his Minority The Lords Repelled the Defense and found that the Discharges imported no Homologation unlesse it were instructed that Sir George out of his own Money payed the Annualrent The Laird of Haining contra the Town of Selkirk February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk and the Laird of Haining the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty by vertue of his Infeftments of the Lands of Haining which Lands are a part of the Kings Property of the Barony of Selkirk and that this Common is the Commonty of the said Barony Possest by all the adjacent Fewars of the Barony and whereof they have been in immemorial Possession The Lords did before answer ordain both Parties to produce all Rights Writs or Evidents they would make use of in the Cause and also to adduce Witnesses hinc inde of both their Possessions and interrupting others Haining produced a Charter by the King in anno 1505. of the Lands of Haining being a part of the Kings Property bearing cum partibus et pertinentibus cum pascuis et pasturis but not bearing in communi pastura or cum communiis generally or particularly in the Common of Selkirk he did also produce posterior Charters of the same Land bearing cum communi pastura and did adduce several Witnesses proving 40. years continual Possession but some of his Witnesses proved Interruptions by the Town of Selkirk's cutting of Divots cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh posterior to Hainings first Charter bearing that their Ancient Evidents were burnt by the English and therefore the King gives them the Priviledge of the Burgh of Selkirk with the Burgage Lands thereof cum communiis ad dictum Burgum spectantibus which the King confirms by a posterior Charter giving the Town warrand to Ryve out 1000. Aikers of Land of the Common they did also produce several Instruments of interruption not only by cutting of the Fail and Divots cast by Haining or his Tennents but by turning their Cattel off the Moor as proper to themselves and turning off all the Heretors Cattel they found thereupon and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining Decerning them to Defist and Cease from the Moor in which Decreet Hainings Predecessor was Provost of Selkirk and is Pursuer of the Cause they also produced two Missives Written by Umquhil Haining acknowledging that the Town had cut his Divots Casten upon the Head Room and making apollogy for Casting of the same denying it to be by his Warrand or Knowledge they did also produce two Acts of the Town Court bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike and to Cast some Divots for his Tennents Houses they did also adduce several Witnesses proving their continual and uninterrupted Possession of the Moor this fourty years and more which proved also frequent interruptions against Haining especially by cutting of Divots and also by turning off his Cattel upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor and that they had debarred the Laird of Haining and his Tennents therefrom whenever they heard they came upon the same It was answered for Haining that he did not deny the Town of Selkirks Right of Pasturage in the Moor but did deny they had Right of Property therein but that the property did yet remain in the King as a part of the Barony of Selkirk being of the Kings annexed Property but that the said Property as to the Moor was now burdened with a Common Pasturage belonging to the Town of Selkirk and also belonging to the Laird of Haining and the other Feuars of the Barony of Selkirk and therefore alleadged that his Charter in the year of God 1507. being long before any Charter granted by the King to the Town did Feu to his Predecessors the Lands of Haining cum pertinentibus cum pascuis pasturis and this Common being the Commonty of the Barony of Selkirk the King Feuing a part of the Barony cum pertinentibus et pascuis did certainly thereby grant all that belonged to these Lands as Pertinent thereof as it was the time of the Feu being then Possessed by the
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot extend
1668. THe Laird of Wamphray being due a yearly Annuity to his Good-mother the Lady Wamphray which now belongs to the Laird of Castlemaines her Husband jure mariti there is a competition thereanent betwixt Factor to the Earl of Dumfress whose Name was used in the Gift to Dumfreis behove as Donator to the Escheat of Castlemaines and Smart as having appryzed from Castlemaines the Right to this Liferent jure mariti who alleadged that he ought to be preferred to the Donator because albeit his Appryzing was after the Rebellion yet it was upon a Debt anterior to the Rebellion and was long before the Donators Gift and therefore according to the known Custom Diligences of Creditors being before the Gift or Declarator are alwayes preferred to the Donators of single Escheat It was answered for the Donator that that Custom was never further extended then to Moveables or Moveable Sums poynded or made forthcoming upon Arrestments but never to Rights having tractum futuri temporis which cannot be carried by poynding or Arrestment but by Appryzing or Adjudication as Tacks or Liferents when Assigned so that the jus mariti being a Legal Assignation and thereby falling under the Husbands single Escheat falls to the King and Donator by the Rebellion and cannot be taken away by an Appryzing pesterior to the Rebellion Which the Lords found Relevant and preferred the Donator Mr. George Iohnstoun contra Parichloners of Hodony Eodom die MR. George Iohnstoun having Right to a Tack set by the Parson of Hodony for his Lifetime and three years thereafter and having used Inhibition pursues the Possessors of the Lands who alleadged Absolvitor because the Tack is null being set for more nor three years without consent of the Patron by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years The Defender opponed the Act of Parliament declaring such Tacks simply null as were set for more then three year The Lords Sustained the Tack for three years as allowed by the Act of Parliament Râ—bert Thomson contra Earl of Glencairn Iuly 21. 1668. RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work wherein he was Imployed by the late Earl for his Lodging and Yeards when he dwelt in my Lord Oxfoords House It was alleadged for the Earl that the Imployment being a Direction was only probable scripto vel juramento The Lords before answer having ordained Witnesses to be Examined and their Testimonies being clear and pregnant that the late Earl did imploy the Pursuer in this Work and called for him frequently and ordered the Work from time to time they Sustained the Witnesses in the Probation and found it proveâ— It did not appear that this Pursuer was within three years of the Work but the Defender did not insist in any Defense thereupon Patoun contra Patoun Eodem die PAtoun in his Sonâ— Contract of Marriage Dispones to him his Estate and the Tocher was payable to the Father after the Contract and before the Marriage the Father takes a Bond of 2800. Merks from his Son the Wife and her Brother pursues a Reduction of this Bond as fraudulent contra bonos more 's contra pacta dotalia It was alleadged for the Father that he might very lawfully take a Bond from his Son for provision of his Children after the Contract and before the Marriage having Infeft his Son in his whole Estate which was worth 1000. Merks yearly and getting but 2500. Merks of Tocher and having some Debt and many Children It was answered that the Estate was not worth 600. Merks of Rent and the Fathers Liferent of 400. Merks reserved so that the Annualrent of this Bond would exhaust the remainder and they would have nothing to live upon The Lords having considered the Contract and Alleadgances thought that it was not sufficient to annul the Bond that it was after the Contract and before the Marriage if there was any reasonable cause Therefore and before answer ordained the Commuuers at the Marriage to be Examined whether it was communed and agreed that the Tocher should be accepted for fâ—tisfaction of the Debt and Bairns Portions and they having Deponed Affirmative The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage the Estate being very mean Sir Iohn Weems contra Campbel of Ednample Eodem die SIr Iohn Weems having Charged Ednample for Maintainance due in Anno 1648. He Suspends on this Reason that upon consideration of the burning of his House in the time of the Troubles he got an Exemption and Discharge from the King and Parliament Anno 1651. It was answered that that Parliament was Rescinded and the Charger had a Commission to uplift all Maintainance in Anno 1648. from the Heretors notwithstanding of any exemptions granted by these pretended Parliaments and their Committees The Suspender answered that the Act Rescissory has an express Reservation of all privat Rights acquired by Authority of these Parliaments for the time and so this Exoneration of his becoming his privat Right falls not by the Act Rescissory and as to the Act of Parliament and Commission to the Charger it must be understood salvo jure and cannot take away the Suspenders anterior Right acquired Which the Lords found Relevant and Suspended the Letters and found that the Suspenders Exoneration was not taken away either by the Act Rescissory or by the Act and Commission in favours of Bogie Lord Rentoun contra Laird Lamertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lamertoun as Representing his Father for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Fathers Commission by which he medled so that having done by publick Authority for the time in relation to the War and differences of the time he was secured by both these Acts. The Pursuer answered that the Act of Pacification and that whole Parliament was Rescinded and the Act of Indemnity had an express exception of all that medled with publick Monies of Fines Forefaultors or Sequestrat Estates and had applyed the same to their own use and had not duly counted therefore and the Pursuer insisted for what the Defenders Father had applyed to his own use or had not duly counted for The Defender Duplyed that his Father had duly counted for his whole Intromission and had made Faith to the Committee of Estates particularly that he had truly given up his Charge without omission and thereupon was Discharged The Pursuer answered that he had instructed much more Intromission and was content to allow the particulars in the Compt produced and craved the superplus which he had now proven by Witnesses adduced before answer and as for the Oath it could only be understood as an Oath of Credulity like that of Executors Confirming Testaments which doth
a time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses
and found that the Cedents Oath could not be taken in prejudice of the Assigney to astruct the verity of the Subscription unless the Assignation had been gratuitous or the matter had been litigious before the same In which case they found that there was no place to Resile after the Subscription of the first Nottar the verity and warrand of the Subscription being proven by the said Margarets Oath The Suspender further alleadged that he could not Remove because the Liferenter being year and day at the Horn he had a Gift of her Liferent Escheat and thereby had right to possess her Liferent-Land The Charger answered non relevat because the Gift was not declared 2dly It could not be declared because it proceeded upon a Horning against a VVife cled with a Husband who being sub potestate viri cannot be Contumacious or Denunced Rebel thereupon The Suspender answered that he needed no Declarator himself being in possession of the only Right to which the Declarator could reach 3dly The Horning albeit against a VVife was valid unless it had been upon a Debt contracted during the Marriage but this Horning proceeding upon a Decreet against a VVife as Executrix and vitious Intromissatrix with her Husbands Goods a Horning upon her own Fact or Fault was alwayes effectual The Lords would not sustain the Gift without a Declarator and superceeded any Extract at the Chargers Instance till a day betwixt and which he might insist in his Declarator and superceeded till that time to give answer in relation to the Horning because the Kings Officers behoved to be called Mr. Alexander Seaton contra Menzies December 19. 1668. MR. Alexander Seaton as Executor to his Brother Pitmedden pursues Seaton of Menzies as Representing his Father who was one of the Pursuers Brothers Tutors for his Fathers Intromission with the Pupils Means who alleadged Absolvitor because the Pupil after his Pupillarity had granted a Discharge to one of the Co-tutors which did extinguish the whole Debt of that Co-tutor and consequently of all the rest they being all correi delendi â—yable by one individual Obligation which cannot be Discharged as to one and stand as to all the rest for albeit pactum de non petendo may be granted to one and not be profitable to the rest a simple Discharge which dissolveth the Obligation of the Bond must be profitable to all The Lords Repelled this Defense unless the Discharge had born payment or satisfaction given and in tantum they found it would be Relevant but not a simple Discharge which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor in omissis male administratis there being nothing here but this Tutors own proper Intromission now insisted for The Lords Repelled the Defense simply Margaret Mckenzie contra Robertsons December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband to pay her share of the Moveables who alleaged Absolvitor because there was as much Debt as would exhaust the whole Moveables It was answered non relevat unless it were alleadged that the Executors had payed the Debt for the Debts being yet due it is jâ—s tertij for them to alleadge thereupon neither can this Pursuer propone alleadgances of payment Compensation or any other or the Defenders Reply upon the Debts belonging to third Parties unless they were pursuing themselves but the Pursuer is content to find Caution to repeat her share in case they were Distrest The Lords Repelled the Defense but prejudice to the Executor to Suspend upon double Poinding calling the Creditors It was further alleadged for the Defenders that they must have allowance of Sums bearing Annualrent since 1641. It was answered that no such Sums can burden the Relict her part because by the Act of Parliament the Relict has no share of such Sums if they were due to the Defunct and therefore a pari she cannot be burdened with such Sums being due by the Defunct The Defenders answered that the Act of Parliament excludes Relicts from such Sums as bear Annualrent being due to their Husbands but doth not bear that they shall be free of such Sums due by their Husbands and Statutes being stricti juris the Lords cannot extend them beyond their Sense to like cases The Pursuer answered that the Lords always did and might Explain and Extend Acts of Parliament to Cases implyed and consequent albeit not verbatim exprest and as to this Act of Parliament it bears expresly that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum relictam before which the Bonds bearing Annualrent could not have burdened the Relict for the word such Bonds may not only be extended to Bonds due to Defuncts but to Bonds due by Defuncts The Lords Repelled also this Defense and found the Relicts part not to be burdened with any Bonds due by her Husband bearing Annualrent unless they had become Moveable by a Charge or that the Term of payment of the Annualrent was not come at the Defuncts death Smith contra Muire Eodem die JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband to pay the sum of 110. pounds due by Bond by the said George to this Pursuer his Sister obtained Decreet thereupon and Appryzed the Liferent of the said Margaret Muire who Suspended and raised Reduction on this Ground that she could not be lyable as vitious Intromissatrix because she possest her Husbands Moveables by a Title in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage for her Liferent use and so she could only be lyable for making forthcoming the true value after her Death The Charger answered First That there could be no Liferent of Moveables quae usu consumuntur and all Liferents of usus fructus must be salvâ rei substantiâ 2dly Though a Liferent could consist in Moveables yet the meaning of such a Clause of all Moveables acquired during the Marriage must be understood the free Moveables deducing Moveable Debt and cannot be understood to exclude lawful Creditors The Lords found the Clause to be understood only of free Gear and not to exclude the Pursuers Debt but found it a sufficient ground to free the Suspender from vitious Intromission and to Retrench the Decreet to the true value Sir Iohn Weems contra Forbes of Tochâ—n Ianuary 2. 1669. SIr Iohn Weems having Charged Tochon for Maintainance due in Anno 1648. or 1650. conform to Act of Parliament and Commission granted to him and Decreet of the Lords Tochon Suspends on this Reason that singular Successors are free by the Act and he is a singular Successor by Appryzing It was answered that the exception of the Act was only in favours of singular Successors who had bought the Lands which cannot be extended to Appryzers who oftimes have the
Decreet of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâ—cit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
of Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ— natâ— his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
Lesly having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself
the Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâ—igner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ— year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the â—eir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
the Cautioner in the Suspension may be reached It was alleadged no Transferrence because Bagillo â—s Father obtained a general Discharge from Denhead before any Intimation upon Collistouns Assignation and albeit the Discharge be posterior to the Assignation produced it must liberat the Debitor who was not obliged to know the Assigney before Intimation It was answered that the Debitor might pay to the Cedent bona fide before Intimation yet a Discharge obtained from the Cedent after Assignation would not liberate against the Assigney though it were before Intimation and this general Discharge bears no onerous Cause 2dly This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead at that time it cannot extend to this sum assigned by Denhead long before and who could not know whether the Assigney had intimate or not and cannot be thought contrair the Warrandice of his own Assignation to have Discharged the sum Assigned especially seing there was an Assignation long before which was lost and the Intimation thereof yet remains and this second Assignation bears to have been made in respect of the losse of the former and yet it is also before this general Discharge The Lords found the general Discharge of the Cedent could not take away this sum formerly assigned to him though not Intimat unlesse it were proven that payment or satisfaction was truely made for this Sum. Alexander Wishart contra Elizabeth Arthure February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh and having entered in Possession by lifting of Mails and Duties some of his Discharges being produced Alexander Wishart as now having right to the Tenements pursues a Declarator against Elizabeth Arthure only Daughter to Mr. William for declaring that the sum whereupon the Annualrent was Constitute was satisfied by Intromission with the Mails and Duties of the Tenements The Defender alleadged that this was only probable scripto vel juramento and not by Witnesses for an Annualrenter having no Title to Possess out-put and in-put Tennents cannot be presumed to uplift more than his annualrent especially seing his Discharges produced for many years are far within his annualrent and it were of dangerous consequence if Witnesses who cannot prove an hundreth pounds were admitted not only to prove Intromission with the Rents so far as might extend to the Annualrent but so much more as might satisfie the Principal and thereby take away an Infeftment for albeit that Probation has been Sustained to extinguish Appryzings which are rigorous Rights yet not to take away Infeftments of Annualrent It was answered that albeit Witnesses are not admitted where Writ may and uses to be adhibite in odium negligentis who neglected to take Writ Yet this is no such case and therefore in all such Witnesses are admitted for if the Pursuer had insisted against the Defender for intrometting with his Mails and Duties of whatever quantity and time within Prescription Witnesses would have been admitted The Defender could only have excepted upon his Annualrent which would have been Sustained pro tanto but the Pursuer would have been admitted to prove further intromission which being by vertue of his Security for a Sum and in his hand would Compense and Extinguish that Sum which is all that is here craved and whereupon the Witnesses are already Adduced The Lords Sustained the Probation by Witnesses for the whole intromission to be imputed in satisfaction of the Principal Sum and Annualrents Lowrie contra Gibson Eodem die LOwrie being Superiour to Gibson in a Feu pursued him before the Sheriff for annulling his Feu for not payment of the Feu-duty and obtained Decreet against him and thereafter Pursued him before the Lords for Mails and Duties wherein Compearance being made Gibson made an offer that if Lowrie would free him of bygones and pay him 1600. merks he and his Authour would Dispone their whole Right which being accepted by the Superiour Decreet was pronunced against Gibson to denude himself upon payment Shortly thereafter Gibson drew up a Disposition and Subscribed it in the Terms of the Decreet and offered it to Lowrie who refused it because his Author had not Subscribed Thereafter Gibson Suspended upon Obedience and Consigned the Disposition which was never Discussed but Gibson continued in Possession still from the Decreet which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator annulling his Feu because the Sheriff was not a competent Judge to such Processes and because Gibson had offered the Feu-duty which was refused so that the not payment was not through his fault and also insisted for Reduction of the Lords Decreet as built upon the Sheriffs Decreet and falling in consequence therewith And as for any offer or consent the assertion of a Clerk could not instruct the same unless it had been warranted by the Parties Subscription It was answered that Gibson having Homologate the Decreet by an offer of the Disposition conform thereto which was only refused because it wanted the Authors Subscription and having Suspended upon Obedience he cannot now object either against the Decreets or Consent It was answered that so long as the Decreets of the Sheriff and the Lords were standing Gibson might be compelled thereby to Consign the said Disposition but that is only on these Terms to be given up if the Lords saw Cause and hinders not Gibson to alleadge why it should not be given up And as to the offer to deliver the Disposition the Instrument of the Nottar could not instruct the same but only Gibson's own Oath The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson yet the simple offer to deliver the Disposition did so Homologate the Decreets and Consent that he could not quarrel the same but they found it not proven by the Instrument without the Oaths of the Witnesses insert in the Instrument And in regard that Lowrie had letten the matterly over for more than twenty years they Declared that the Agreement should only take effect from this time and that Gibson should not be comptable for the bygone Duties Ninian Home contra Francis Scot. February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. merks He Suspends on this Reason that both Parties having referred the matter verbally to an Arbiter he had determined 200. merks to be payed for all whereupon Hume had pursued It was answered that verbal Submissions and Decreets Arbitral are not binding but either Party may resile before Writ be adhibite The Lords found the Reason was Relevant to be proven thus by the Chargers Oath that he did submit and by the Arbiters Oaths that they did accordingly determine Lowrie of Blackwood contra Sir John Drummond Eodem die SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond for love and favour and for better incouraging Sir Iohn to pay his Debt as the
by the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâ—ssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
Annualrents The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
unwarrantable Correspondences amongst Advocates whereby they may forbear or refuse to Consult Plead or concur with these who did so faithfully adhere to Our Service and did continue in or early return to their Station and as further Evidences of Our Royal Favour We do Ordain That the three Clerks of Session who do expede your Decreets shall be nominate by the Senators of Our Coledge of Iustice in all time coming and that they be subject to their Sensare and that the Clerk of Register give them Deputations from time to time and in case of Vaiking of the Clerk of Registers Offâ—â—â— We do Authorize the saids Clerks of Session to Act by your Warrand as they shall be Ordered by you without prejudice to the Clerk of Register of all other Benefite and Emolument belonging â—o or depending upon that Office And it is Our further Pleasure that in all time coming there be only three ordinarie Clerks of Session besides the Clerk of the Bills according to the ancient Constitution and that of the number that now serve you make choice of three that shall still serve and that you modifie such Satisfaction to be payed by those that remain to those that are to go out as you shall find just and reasonable and so We bid you Farewel Given at Our Court at Whitehall the twenty fourth day of May One thousand six hundred seventy and six And of Our Reign the twenty eight year Subscribed thus by His Majesties Command LAUDERDAIL ACT concerning the Registers Iuly 4. 1676. THE Lords having considered His Majesties Letter direct to them bearing that whereas by His Majesties advancing Sir Archibald Primerose of Caringtoun late Clerk Register to the Office of Iustice-General the Office of Clerk Register is now Vacant and seing His Majesty hath thought it necessar for the advantage of His Service and for the good of His Subjects that the hail publick Records of this Kingdom which are and were in the Possession and Custody of the late Clerk Register or his Deputs and Servants be put and keeped in good Order Therefore His Majesty impowers and authorizes the saids Lords to take special care and see that the same be effectually done and to that effect that they appoint some of their number to take inspection thereof and by themselves and such as they shall imploy under them to put and continue them in good Order And His Majesty authorizes the saids Lords and those of their number appointed by them to receive the hail publick Registers and Records from the late Clerk Register upon such account and Inventar as they should find just safe and secure and which being effectually gone about and done that they render to His Majesty or to His Secretary for His Majesties perusal a full and exact account of their diligence therein to the end His Majesty may thereafter declare His further Pleasure and for effectuating hereof that the Lords in His Majestie 's Name and by His Authority Require the late Clerk Register and his Deputs and Servants to exhibite and produce the saids hail Records to them or those appointed by them immediatly after receipt of His Majesties Letter The saids Lords in pursuance of His Majestie 's Command do nominat and appoint the Lords Thesaurer Depute Collingtoun Reidfoord and Newtoun or any two of them to meet at such times as they shall think convenient and to take inspection of the hail publick Records of the Kingdom which are or were in the Possession and Custody of the Lord Caringtoun late Clerk Register or his Deputs and Servants and by themselves or such as they shall imploy under them to put and continue the same in good Order and authorize the Lords above-named to receive the saids hail publick Records from the Lord Caringtoun upon sufficient Account and Inventar and to that effect the Lords in His Majesties Name and by His Authority do Require the Lord Caringtoun and his Deputs and Servants to exhibite and produce the saids hail publick Records to the Lords above-named or any two of them whem they shall desire the same and allows the said Lord Caringtoun or any Person whom he shall authorize to be present at the Inventaring of the saids Registers to the end obedience may be given to His Majestie 's Letter in all points ACT for Inventaring the Registers Books Iuly 13. 1676. THE which day the Lord Thesaurer Depute Collingtoun Reidfoord and Newtoun made report to the Lords that conform to the Warrand given to them they had met with the Lord Caringtoun late Clerk Register and had delivered to him the Ordinance past by the Lords upon His Majestie 's Letters concerning the Registers and had taken a view of the hail Records in his Custody in the Parliament-House and in the Castle of Edinburgh and that the Lord Caringtoun declaredâ— he would deliver the same either upon Inventar or in bulk without Inventary upon oath that he has Abstracted none of them as the Lords should think fit to order he being exonered of the saids Registers but they found the Warrans to be so many and not in order that it would take a long time to Inventar them which report being considered by the Lords they in pursuance of His Majesties Commands do ordain the whole Register Books which are in the said Lord Caringtoun's Custody to be presently Inventared by Iohn Anderson Writer in Edinburgh and any others who shall be appointed by the Lords above-named who shall give their oaths that they shall faithfully discharge this Trust according to such Directions as they shall receive from these appointed by the Lords and ordain the Inventary to bear What each Book contains in general at what time itâ— begins and when the same ends and if there be any blanks in the Books that the same be marked in the Inventary And ordains the said Lord Caringtoun to give the said Iohn Anderson or any others to be appointed by the saids Lords access to the saids Registers to the effect foresaid and allows him or any he shall appoint to be present at the said Inventaring and after the said Inventar shall be made the Lords do impower those of their number above-named or any two of them to to take the oath of the Lord Caringtoun if he hath any more Register Books Records or Warrants then are in the Rooms in the Parliament-House and Castle of Edinburgh whereof he is to deliver the Keys and if he abstracted or embazeled any of them or if they be all intire as he received them or as they came at any time thereafter to his hands And likewise ordain any of his Servants intrusted with the keeping of the saids Registers to be examined upon oath thereanent and thereafter ordain the Lord Caringtoun to deliver the Keys of the Rooms or Presses where the saids Registers and Warrands are to these of their number appointed to receive the samine Which Inventary being made and the Lord Caringtoun giving his oath and delivering the Keysâ— as
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ— five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ— whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
known or might have been known to the Pursuer the time of the Bargain at least to his Tutors who made the Bargain Secondly there is no legal Distress but voluntar payment made all the years bygone The Lords Repelled the Defense and found that seeing the Distress by the Stipend was unquestionable payment made thereof without Processes prejudged not and that the Pursuers knowledge could work nothing being then a Pupil Laird of Elphingstoun contra Sir Mungo Murray Eodem die THe Laird of Elphingstoun having Charged Sir Mungo Murray for the price of some Lands bought from him he Suspends and alleadges that by the Disposition the Charger is oblieged to relieve him of all Inhibitions and now produces several Inhibitions The Charger answered non relevat unless there were a Distress seeing the Disposition bears not to purge but only to relieve or to warrant against Inhibitions The Lords considering that the Chaeger vergebat ad inopiam found the Reasons Relevoan till Cauton were found to warrant the Suspender from these Inhibitions They found also that where the Charger was oblieged to pay to the Suspender the Composition for his Entry to the Lands That the Suspender should have no Composition if he got it Gratis albeit he alleadged he got it for other good Services Skeen contra Lumsdean Eodem die ANdrew Skeen having Charged Alexander Lumsdean for payment of a sum for which he was Cautioner for his Brother Mr. Thomas Lumsdean he Suspends upon this Reason that the cause of the Bond was two Bills of Exchangeâ— which was Protested The Suspender answered he offered him to prove they were payed after the Protest by him who drew the Bills or by Mr. Thomas Lumsdean in whose Favour the Bills were drawn The Suspender replyed that the Alleadgence ought to be Repelled because he was assigned to the protested Bills for relief of this Cautionry and intimat his Assignation to Skeen who delivered the Bills and got the Bond Charged on The Charger offered him to prove paymentâ— before that Assignation or Intimation and ad modum probationis produced an Instrument under the Seal of Camphire and a Declaration of the Conservator there bearing that upon inspection of Mr. Thomas Lumsdeans Compt Books they found that he had acknowledged two or three sums payed in part of these Bills and exprest the Dates thereof prior to the Assignation The Suspender alleadged the Compt Books could not prove unless they were produced Cognosced and Proven to be Lumsdeans Compt Books Secondly they could not prove contra tertium Thirdly the Question being de data and they holograph they could not prove their Date Fourthly these Testificats can prove nothing unless they had been taken upon Processes or by Commission The Lords found the Testificats could not prove but that the Compt Book being Cognosced might prove against the Assigney being Brother to Lumsdean and the Books out of his hand since he was broken for amongst Merchants Compt Books or Writs without Witnesses by their Custom are sufficient and ordained Lumsdean and his Brother to Depone upon the having of the Books to produce them if they had them and if not granted Commission to the Magistrats of Camphire and Conservator to Cognosce the Books and to report what they find of this matter in them Marjory Gray contra Dalgardno February 7. 1662. MAjory Gray pursues Dalgardno as vitious Intromettor with the Goods of a Defunct to pay his Debt who alleadged Absolvitor because the Defunct Died Rebel and at the Horn and so nihil fuit in bonis defuncti seing by the Rebellion all his Moveables belonged to the Fisk ipso jure without necessity of tradition for the King jure coronae hath the right of Lands without Infeftment and the right of Moveables forefaulted or fallen in Escheat without Tradition or Possession The Pursuer answered non relevat because the Defender Intrometting without any warrand from the Fisk is quassi prodo and Moveables are not ipso facto in the Property of the Fisk by the Rebellion But if they be Disponed by the Rebel for an onerous Cause the Disposition before Rebellion will be valid or if they be arrested for the Defuncts Debts and recovered by Sentence making forth-coming or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel he will be preferred to the Fisk by all which it appears that the Rebellion transmits not the Property The Defender answered that these Instances do only show that the King prefereth Creditors and takes but the benefit of what the Rebel had deductis debitis or what was Contracted with him bona fide but doth not say that the Property of the Goods were not in the Fisk but in the Rebel The Lords repelled the Defense The Defender further alleadged that not only was the Defunct Rebel but that he had a Gift of his Escheat The Pursuer answered non relevat unless it had been before the vitious intromission or at least ante motam litem The Lords Repelled the Defense unless the Defender would alleadge that the Gift was ante motam litem for they thought that the Taking of the Gift was like the Confirmation of an Executor which purged vitious Intromission being ante motam litem Iohn Bonnar contra Robert Foulis Eodem die JOhn Bonnar pursues Robert Foulis to pay the Debt of a Person Incarcerat by Act of Warding whom the Bailzie set at Liberty without Warrant The Defender alleadged no Processes because the Person Incarcerat was not Called who might have proponed Exceptions against the Debt that it was payed c. Secondly that thereafter the Pursuer had taken himself to the Incarcerat Person and gotten part of payment from him The Lords Repelled the Defenses and decerned but because there was a Reduction depending of the Decreet whereupon the Person was Incarcerat and that he was set at Liberty in Anno 1659. when there was no Iudicatory sitting they superceeded Extracting for the time till the Reduction was Discust Countess of Buckcleugh contra Earl of Tarras Eodem die THe Countess of Buckcleugh pursuing Reduction of a Contract of Marriageâ— betwixt her Sister and the Earl of Tarras The Lords would not Sustain incident for the Earl of Tarras albeit he was minor that Contract being his own Writ and not his Predecessors Lockerbie contra Applegirth Eodem die JOhnstoun of Lockerbie having obtained Decreet against Ierdine of Applegirth for a Sum payed by the Pursuers author as Cautioner for the Defenders Father The Lords found Annualrent due by the Principal to the Cautioner by an Act of Sederunt 1613. and that from the year 1619. until now in respect the Cautioner had payed upon distress by Decreet of Transferrence and a Charge of Horning thereon Acheson contra Mcclean Eodem die DAm Iean Acheson pursues the Laird of Mcclean as representing their Predecessors who was Cautioner in a Suspension The Defender alleadged nothing produced to prove the Suspension Discussed but Letters of Horning upon a Protestation which cannot
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
are not called this being an Action that in effect terminateth upon a Perambulation or Determining of the Marches It is a Real Action and there is necessity to call the Heirs of Sir Iohn Hope who died last vest and seased in the other adjacent Lands The Pursuer answered that he offered him to prove that Sir Iohn had Disponed in favour of Sir Alexander and resigned in his time It was answered for Sir Alexander that Sir Iohn was not Denuded seing no Infeftment followed and the Disposition is but an incompleat Personal Right so that some having the Real Right must be called The Lords repelled the Defense in respect of the Reply It was further alleadged for Sir Alexander that he had builded a park dyke upon a part of the Ground in Question before the Pursuers Right sciente astante domino the former Heretor having never opposed nor contradicted which must necessarily infer his consent The Pursuer answered that it was not relevant to take away any part of the Property upon such a presumptive consent neither was he oblieged to disassent seing he knew that which was builded upon his Ground would become his own in edificatum solo cedit The Lords repelled this Defense also but they thought that the taciturnitie might operat this much that Sir Alexander might remove the materialls of his Wall or get from Patrick Nicol quantum partem est lucratus by the building of the Wall Murray of Merstoun contra Thomas Hunterr Eodem die MVrray of Merstoun pursues Thomas Hunter fot a Spulzie of Malt who alleadged that as to that member of the Lybel of the Spulzie of the Malt by the Defenders hunding out or command It is only relevant scripto vel juramento The Pursuer answered that she qualified the Probation thus That the Defender intrusted a Messenger or Officer to execute a Precept of Poynding by delivering him the Precept and therefore the Precept with the execution thereupon is sufficient Probation The Defender answered that the same is not sufficient because the Officer execute the Precept extra territorium whereby it became a Spuilzie which ought not to be imputed to the Defender unlesse it were offered to be proven that he ordained the Officer to Poynd this Malt without the Jurisdiction and that only scripto vel juramento The Pursuer answered that as the giving of a Precept of Seasin is a sufficient warrant without any other Procuratry whatever the effect of the Seasin be so must the delivery of the Precept of Poynding be sufficient to instruct the warrand or command to Poynd where-ever the Poynding was execute and the user of the Poynding should be lyable to the deeds done by the person he intrusts Especially seing not only the Messenger was sent but other Servants and Messengers imployed by the user of the Poynding The Lords found the giving of the Precept of Poynding to the Messenger and his unwarrantable poynding Extra territorium not sufficient only but found it relevant to prove by the Messenger and Defenders Servants imployed by him their Oaths that they were commanded to Poynd this Malt or other goods in this place being Extra territorium Skeen contra Lumsdean Eodem die SKeen having charged Alexander Lumsdean for payment of a Bond for which he was Cautioner for Mr. Thomas Lumsdean his Brother Alexander Suspends on this Reason that the Bond was granted for a Bill of Exchange drawn by one Dutch man upon another to be payed to Skeen or his Order which Bill Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean for which this Bond was granted Ita est the saids Bills of Exchange were not payed but protested and is assigned by Mr. Thomas Lumsdean and his Spouse to the Suspender at least if any payment was made to Mr. Thomas Lumsdean the Cedent it was after the Assignation to Alexander Lumsdean the Suspender and intimation thereof It was answered for the Charger that the Reason ought to be repelled because he offered him to prove by Mr. Thomas Lumsdean at that time Factor at Campheir his Compt-book that albeit the Bills was once protested yet they were payed before Assignation or Intimation The Lords before answer having granted several Commissions to the Magistrats and Conservitor at Campheir to view and examine the Compt-book which was at Campheir They reported that in such a Page of the Book there was three Articles of Receipt in part of payment of the Bills after which Pages the Book was containued and several Compts written therein and that it was Authentick and Unvitiat and all written with the hand of Iohn Muire Mr. Thomas Stepson who was his Book-keeper and that they had been a long time since out of Mr. Thomas hands about the time he Bankerupted and that they had examined upon Oath him who drew the Bill amd him upon whom the Bill was drawn both who had sworn payment was made the question was whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney It was alleadged It could not seing it had no more Effect then as Holograph Discharge which might be made up after the Assignation and therefore proves not against the Assigney It was answered that though a Holograph Discharge will not prove alone yet if by other Adminicles Writs or Witnesses it appeas that the Date is true at least is prior to the Assignation or Intimation it will be sufficient against the Assigney so the Adminicles here are pregnant and strong to prove the time of payment contained in the Compt-Book The Lords found the Compt-Book and Adminicles sufficient here against the Assigney especially considering that the Cedent was his Brother and that it was not presumable that he would do any Deed in making up these Receipts in his Compt-Book in prejudice of his Brother Thomas Beg contra Sir Thomas Nicolson Ianuary 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk he Suspends on this Reason the Charger is only Liferenter and hath no right to lift the Sum because the Bond is conceived thus to Thomas Beg and his Spouse the longest Liver of them two in Conjunct-fee and to the Bairns procreat betwixt them which failzing to two Bairns of a former Marriage Thomas and Margaret Begs and which Bond contains a Precept of Seasife for Infefting the said Thomas and his Spouse and the Bairns of the Marriage which failzing the said Thomas and Margaret Bairns of the former Marriage according to which there was a Seasine taken not only to the two Spouses but to the two Bairns nominatim who therefore are Feears The Lords repelled the Reason because having considered the Bond and Infeftment conceaved as aforesaid they found the Husband by the Conjunct-fee to be Feear and the Bairns of the Marriage to be destinat Heirs of Provision and the said Margaret and Thomas to be only substitue as Heirs of Tailzie failzing the Bairns of the Marriage and that therefore if the Father
Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâ—ri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâ—do to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ— is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ— December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
Wines at that time gave 20. pound Sterling and not the second because it was an exception of Compensation and relative to Writ The Lords sustained the first member of the quality but rejected the second and found it relevant to be proven by way of exception Goldsmiths of Edinburgh contra Robert Haliburton December 10 1664. THe Goldsmiths of Edinburgh having obtained Decreet against Haliburton as Heir to his Father He suspends upon this Reason that the Goldsmiths confirmed themselves Executors Creditors to his Father and must allow the Inventar which either they have in their hand or at least should have done Diligence therefore It was answered for the Executors that they being Executor Creditors are not lyable for Diligence having Confirmed but to their own behove for their payment and as Creditors may arrest apprize and do all Dilligence severally the one but prejudice of the other so may they Confirm 2ly They found that having Confirmed in Edinburgh whereas the Defunct lived and died within the Diocie of Glasgow that therefore their Title was null and therefore did not proceed And lastlie oppons their Decreet in foro The Suspender answered that they can never object against the nullity of their own Title 2ly All that time there was no Commissioriat Constitute for the Shire of Air where the man died and so Edinburgh was communis patria The Lords having Debated the general case whether Executor Creditors were lyable for Diligence waved the same but found that in this Case in respect of the questionableness of a Title they would not find them lyable upon their negligence Lyon of Muirask contra Sir Robert Farquhar Eodem die MVirask having pursued a Declarator of Redemption of the Lands of Balmellie against Sir Robert Farquhar Litisâ—ontestation was made in the Cause wherein the Order was sustained proceeding upon an Adjudication against Sir Iohn Vrquhart as Heir to his Goodsire and it was offered to be proven that he died in the Right of the Reversion of this VVodset which was but base and holden of the granter for proving whereof his Charter was produced bearing the Barony of Craigfintrie and Balmellie per expressum At the advising of the Cause It was alleadged that the Defender having protested for Reservation contra producenda It is now instantly verified that the Grand-Father died not in the Right of the Reversion but that he was denuded by Disposition to his Son instructed by his Charter produced The Pursuer answered that he opponed the state of the Process And if such a Defense were now competent it ought to be Repelled because he hath Right from Sir Iohn Vrquhart who is Heir Served and Retoured to his Father in whose favours his Grand-father was Denuded and has declared that he consents to the Declarator upon that Ground and Renounces all other Right The Defender answered that the order having been only used upon the Adjudication from Vrquhart as Heir to his Grand-father if that be excluded albeit the Pursuer have another Right he must use the Order de novo and redeem thereupon 2ly Sir Iohn Vrquharts Right produced Renounces but does not Dispone any Right to the Pursuer The Lords having considered the state of the Process found that a Reply instantly verified is receiveable post conclusum in causa unless it were alleadged to have been known to the Proponer and dolose omitted by which the Pursuer might be put to a Duply suffering new Probation But the Lords found that the Charter produced bearing the Grand-father to be Denuded did not instantly verifie because it expressed not Balmellie and would not allow a Term to prove part and pertinent It was further alleadged by the Defender no Declarator till the Sums consigned were reproduced at the Bar especially seing it was offered to be proven that the Pursuer lifted them himself and he being at the Bar it is instantly verified The Lords sustained the same and Declared the Sums being Reproduced before Extract and that the Pursuer shall be lyable for Annualrent or the Wodsetter shall retain the Duties effeiring thereto Lord Rollo contra His Chamberland December 13. 1664. THe Lord Rollo having pursued his Chamberlain for Intromissions conform to a particular accompt libelled The Defenders have compeared offered to prove he was Discharged which was found relevant and now producing the same it proves but for a part whereupon the Pursuer craved Sentence for the rest It was alleadged for the Defender that there was nothing produced to instruct the Intromission The Pursuer answered that the Defender having made Litiscontestation upon a Discharge without denying the Intromission he has acknowledged the Libel and the Pursuer cannot be put to prove the same without inverting the Order and making two Litiscontestations in the same Cause The Defender answered that this being but an omission of the Advacats or Clerks of a thing palpable the Lords might repone the Defender The Lords adhered to the Act of Litiscontestation but referred to some of their number to move the Parties to what was equitable and it was thought that if the Defender would alleadge that he was not Intrometter for these particulars but that they were in the Pursuer or his other Chamberlains hands and were instantly verified by his oath it were receivable Bishop of the Isles contra Iames Hamiltoun Eodem die THe Bishop of the Isles pursuing Hamiltoun a Merchant in Edinburgh for his Teind Fish taken in the Isles which is a part of the Bishops Patrimony The Defender alleadged â— that he being a Merchant and not a taker of Herring cannot be lyable for the Teind thereof no more then if one should buy Corns in the Mercat or out of the Barn-yard he could be conveened for the Teind It was answered for the Pursuer that it was the immemorial custom that the first buyer from the Fishers should be lyable to the Bishop of the Isles for the Teind of the Fish bought and for proving thereof produced a Decreet at his Predecessors instance against some Merchants in Edinburgh which Decreet did bear that in a former Decreet betwixt the same Parties the Bishops had proven immemorial Possession against the Merchants 2ly The instance holds not of buying Corns in the Mercat or Barn-yeard but if any body should buy the whole Cropt when it was upon the Land untaken off being in the Sheaves or Stoucks he would undoubtedly be lyable as Intrometter for the Teind so if any Merchant bought not upon the place where the Fishes were taken he was not lyable but buying the Fish fresh as they were taken in whole Boat-fulls and selling them there themselves such Merchants must be liable as Intrometters The Defender answered that the Immemorial custom was indeed Relevant but a Decreet against some few Persons could not prove it against others being inter alios actum But here there was only a Decreet bearing that there was a former Decreet in which that was proven The Lords sustained that member against these who bought the hering
title to it 2. Though it should be condescended that they were lent yet it must be proven only scripto vel juramento being a matter above an hundred pound The Pursuer answered that in liquid Sums or Promises Witnesses are not receivable above that Sum but in corporibus or facts as in bargains of Victual made and delivered Witnesses are sufficient though for greater Value The Lords found the Pursuer behoved to condescended upon the way the books was delivered and found it probable by Witnesses Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh Eodem die MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights Mr. Williams Right was upon a Decreet cognitionis causa against the Appearand Heir renuncing against which Iohn Boyd alleadged that the Adjudication was null proceeding upon a null Decreet cognitionis causa First In so far as it was lybelled at the instance of Kintor as Assigney by his Brother who was Heir to his Father and Execut-Executor and neither Retour nor Testament produced and so was null for want of probation The Pursuer answered that he had now produced in supplement of the Decreet the Writs The Lords sustained the Decreet only as ab hoc tempore 2ly Boyd alleadged that the Decreet cognitionis causa proceeded on six hundered merks which was Heretable by Infeftment and contained Clause of Requisition and no Requisition produced The Lords found the Decreet null pro tanto and to stand for the rest being upon diverse Articles 3ly Boyd alleadged that the said Decreet ought to be Reduced in so far as it proceeded against the Cautioner of a Tutor for payment of the Annualrent of his Pupils money during the Tutorie and for the Annualrent of that Annualrent a tutâ—la finita because the Tutor had uplifted at least ought to have uplifted and imployed the same for the Pupills behove ex officio It was answered that albeit Tutors are oblidged for their Pupils Rent which are in Tennents hands yet not for the Annualrent of their Money being in secure hands then and now if the Tutor had lifted it it would have been lost he being broken and the Cautioner also and the Debitors being great men as the Marquess of Hamiltoun and Lord Burghlie they would easily have Suspended and lost the Pursuers pains The Lords found that Tutors were oblidged to uplift their Pupils Annualrents though the Creditors were secure and to imploy them for Annualrents but not for each year they were due but ante finitam tutelam because though he had them he was not oblidged every year to imploy them severally and so sustained the Decreet 4ly Boyd alleadged that the years of the Tutorie ought to have been proven which was not and so the Decreet is null The Lords sustained the Decreet seing it was lybelled in communi forma unless it were alleadged that some of these years were post sinitam tutelam here a Testificat of the Pupils age was produced Lord Borthwick contra Mr. Mark Ker. Ianuary last 1665. THe Lord Borthwick pursues a Reduction ex capite inhibitionis of all Rights made by Sir Mark Ker to Andrew or Mr. Marks Ker of Moristoun of certain Lands The Defenders alleadged no Process because none to represent Sir Mark Ker were called who being bound in warrandice to the Defenders ought to be called whereas of old Processes sisted till warrands were first discussed so now the warrand ought at least to be called The Pursuer answered that he was not craving Reduction of Sir Marks own Right but of Moristouns Right granted by Sir Mark who was common Author to both And as to the warrandice the Defender might intimat the plea if he pleased The Lords found no Process till the warrand were called Alison Kelloâ— contra Pringle Eodem die ALison Kello pursues a Reduction against the Lairds of Wadderburnâ— and Pringle and craves Certification It was alleadged for Pringle no Certification because he was minor non tenetur placitare de Haereditate Paterna The Pursuer answered primo non relevat against the Production but the Minor must produce and may alleadge that in the Debate against the Reason 2ly Non constat that it is Hareditas Paterna and therefore he must produce at least his Fathers Infeftment 3ly All he alleadges is that his Father had an Heretable Disposition without Infeftment which cannot make Haereditatem Paternam else an Heretable Bond were not Reduceable against a Minor or an Appryzing and Tack 4ly Albeit the alleadgeance were proponed in the discussing of the Reason yet the Reason being super dolo metu upon which the Defenders Original Right was granted and not upon the poynt of Preference of Right the brocard holds not in that Case as it would not hold in Improbation in casu falsi The Lords found that the Defender ought to produce his Fathers Infeftment and that a naked Disposition would not be sufficient which being produced they would sustain the Defense quoad reliqua against the Production but that they would examine Witnesses upon any point of fact in the Reason to remain in retentis that the Witnesses might not die in the mean time without discussing the Reason but prejudice of their Defenses Anderson and Proven contra Town of Edinburgh Eodem die ANderson being Creditor to Proven arrests in the hands of Gairdner all Sums due by him to Proven and thereupon pursues before the Commissaries of Edinburgh Gairdner gives his Oath that he is Debitor to Proven no way but for the Tack Dutie of the Customs of Edinburgh whereunto he was Sub-tacks-man to Proven conform to his Bond produced whereupon the Commissaries decerned Gairdner Suspends on double poynding It was alleadged for the Town of Edinburgh that the Sum in question being a Sub-tack dutie they had the common priviledge of all Masters against their Tennents and Sub-tennents that they might pursue either of them as they pleased without an Arrestment or any Diligence and were alwayes preferable for their Tack-dutie to any other Creditor of the principal Tacksman It was answered that Custom was not in the case of Rents of Lands wherein their is tacita hipotheca and that the principal Tacks-man was only their direct Debitor and the Sub-tacksman paying to the Principal Tacksman or which is equivalent to his Creditor is for ever free and the Town of Edinburgh hath secured themselves by taking Caution of the Sub-tacksman The Lords found the Town of Edinburgh preferable for their Tack-dutie and that they had immediat Action against the Sub-tacksman unless he had made payment bona fide before that they might exclude any other Creditor of the Principal Tacks-man for their Tack-dutie George Baptie contra Christian Barclay Eodem die CHristian Barclay having pursued George Baptie before the Commissares of Edinburgh for Solemnizing Marriage with her because he had gotten her with Child under promise of Marriage as was instructed by his Bond produced
the exception of the Act Salvo Jure Scot of Thirlston contra Scot of Braidmeadow Eodem die SCot of Thirlston having right to the Teynd of midshef and pursues the possessor for 24. Years bygone and in time coming who alleadged absolvitor because these Teynds are allocal to the Church coâ—â—orâ— to a Decreet of locality produced bearing such a Stipend and locatting so much of it and for the restâ— that the Minister had the Teynds of midshef It was alleadged that this could not instruct that those whole Teynds were allocal but so much as made up that rest and the Teynd is worth twice as much and therefore the Minister had but the twenty Lamb for the Teynd which is but half Teynd and was lyable to the Pursuer for the rest It was answered that Teynds are secundum consuetudinem loci and if Tyends had never been payed none would be due and if the twenty Lambs was all ever payed they could be lyable for no more The Lords found that before the intenting of the cause they would not allow any more nor then what was accustomed to be payed unless the Pursuer offer him to prove that there was a Tack or use of payment of more which they would allow accordingly Sir William Thomson contra Town of Edinburgh February 14. 1665. THe Magistrats of Edinburgh having deposed Sir William Thomson Town Clerk from his Office on this ground That a Tack of the new Imposition and Excise being set to their Tacks-men which was to have been subscribed by him as Clerk for the Deacons of the Crafts he had given it up to the Tacks-man and had not taken their subscription thereto neither to their own double nor taken another double for the Town albeit the Tack duty was fourscore thousand merks yearly for two years and that it being an uncertain casuality the value of it was most difficult to prove and not but by the Tacks-mens own Oath Sir William raised Reduction on several Reasons especially that the sentence was unjust in so far as it was the puting on of an exorbitant and incommensurable punishment of deprivation from an Office of so great Value upon a Fault of meer negligence or escape and that before the Sentence the Tack-dutie was all payed but four monethes and now all is payed and that Sir William was still willing for to have made up the Towns damnage It was answered that here was no Process to put a punishment commensurable on a Fault but Sir William having by the free Gift of the Town had so profitable a place for his life upon consideration of his Fidelity and Diligence there is implyed in it as effectualy as if exprest that it is ad vitam aut ad culpam so that the cognoscing of the Fault is the termination of the Gift freely given so if their be a fault Justly found by the Town they might well take back their Gift they gave upon that condition implyed for it was not the loss in eventu nor dolus in proposito that made such a Fault else all negligences imaginable would not make it up though a Servant should leave his Masters House and Coffers open if nothing happened to follow yet the Fault was the same and could not be taken away by making up the damnage but here was a Fault of knowledge and importance for Sir Wilâ—iam could not by meer negligence nor ommission give away the Tack to the Tacks-men and neither see them subscribe their own double or any other nor subscribe himself this Fault was likeas in his Office he had a particular gratuitie as Clerk to the excise The Lords repelled the Reason of Reduction and found the Sentence not to be unjust upon this ground because they thought that Sir William being a common Servant who by his Act of admission had specially engadged never to quarrel the pleasure of the Magistrats they as all Masters have a latitude in cognoscing their Servants Faults wherein though they might have been wished to forbear rigor yet having done it by their power as Masters over their Servants The Lords could not say they had done unjustly but found that the committing such a Fault terminat their free Gift being of knowledge and importance but found that if it could be proven that the Tack was duelie subscribed and lost thereafter which was not of knowledge but of meer omission incident to any Person of the greatest diligence they would not find that a sufficient ground to depose him Bishop of Dumblain contra Earl of Cassils February 15. 1665. THe Bishop of Dumblain pursues the Earls Tennents for the Teynds of the Abbacy of Corâ—regual as a part of his Patrimony annexed thereto by the Act of Parliament 1617. The Defender alleadged no Process till the Act of Annexation being but an Act unprinted were produced 2ly Absolvitor because the Defender had Tacks from the King in Anno 1641. And by vertue thereof was in possession and could pay no more then the Duties therein contained till they were reduced It was answered to the first it was nottour and if the Defender alleadged any thing in his favour in the Act he might extract it 2ly The Defender could not claim the benefit of his Tack 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right but Possession is restored to them as then which is as sufficient an interruption by publick Law as if it were by Inhibition ot citation Which the Lords found relevant being in recenti after the Act and never acknowledged by the Bishops Boyd of Pinkill contra Tennents of Cairsluth Eodem die PInkill as Donatar to the waird of Cairsluth pursues removing against the Tennents whose Master compears and alleadges that the Gift was to the behove of the Minor his Superiour who as representing his Father and Guidsire was oblidged in absolute warrandice against Wairds per expressum THe Lords considering whether that could be understood of any other Wairds then such as had fallen before the warrandice or if it could extend to all subsequent Wairds of the Superiours Heir and so to non-entries c. which they thought hard seing all holdings were presumed Waird unlesse the contrary appear and the Superiour could not be thought to secure against subsequent Wairds unlesse it were so specially exprest all Wairds past and to come Yet seing it was found formerly that if the Superiour take such a Gift and be bound in warrandice that the same should accresce to the Vassals paying their proportional part of the expense and composition they found the Defense that this Gift was to the behove of the Superiour relevant ad hunc effectum to restrict it to a proportional part of the expense Hellen Hepburn contra Adam Nisbit February 16. 1665. HEllen Hepburn pursues Adam Nisbit to remove from a Tennement in Edinburgh who alleadged absolvitor because he had a Tack standing for Terms to run It was replyed that the Tack bore expresly if two
warrandice of an Assignation made by the said Collonel to Sir Arthur dowglass of whittinghame The Defender alleadged absolvitor because the Assignation was only made in trust which he offered to instruct by many Adminicles of which these were the chief that by the Witnesses adduced it was cleared that this Assignation remained in the hands of one Cranstoun who was filler up of the date and Witnesses therein that it was never delivered to Whittinghame and that the Right Assigned was still retained by the Collonel who thereupon obtained two Decreets before the Lords and uplifted the Money from Sir William Thomson Debitor Cranstoun who keeped the Assignation being an Agent in the house never questioning the same nor Sir Arthur or any of his owning the same for the space of 20 year till of late Kingstoun gave 300. merk to get the Assignation out of the hands of one Ienkin who got it from Cranstoun and that the Money was to have been presently imployed for the levying of Souldiers for a French Regement whereof Fullertoun was Collonel and Sir Arthur Livetenant Collonel there were also two Letters of Sir Arthurs produced by the Collonel acknowledging the trust thereof the one was alleadged to be holograph but nothing adduced to prove the same but three other writs subscribed before Witnesses for comparing the Subscriptions therein with the Subscriptions of the Letters The Pursuer answered that so solemn a Write subscribed before Witnesses could not be taken away by Presumptions or Witnesses but either by Writ or Oath of Partie and as to the Presumptions adduced there are stronger Presumptions with the solemn Writ then against it Fullartoun a most circumspect man would never have given an Assignation in trust without a Back-bond and that Sir Arthur died shortly thereafter Anno 1642. and Cranstoun died Auno 1645. And Whittinghams Successors were strangers to the business and the missives adduced were not proven holograph and were suspect The Lords found the Defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied Sir George Mouat contra Dumbar of Hembrigs Eodem die SIr George Mouat as Assigney to a Tochar of 5000 merk whereunto umquhile Dumbaith was contracter pursues Hemprigs as representing him for payment The Clause of the Contract bore That the Husband should have the Tochar out of the first and readiest Goods of the wifs Father and that he should have Annualrent therefore but did not expresly oblidge Dumbaith to pay and therefore he is not lyable personally unless he had intrometted with the Defuncts means The Lords found the Defender lyable seing the Clause being in re dotali it behoved to be interpret cum effectu and if it did import only a consent not to hinder the Husband it signified nothing and because in Cases conceived passivè where it does not appear who is oblidged the Contracter is understood oblidged Campbel contra Campbel Eodem die A Wife pursuing her Father in Law for imployment of her Tochar conform to her Contract He alleadged absolvitor because the Clause bore expresly that so soon as the Tochar was payed compleatly he should imploy it and so much more for the Wifs Liferent use so that unless it were shown that the Tochar was compleatly payed he was not oblidged The Pursuer answered that she was not oblidged to pay the Tochar but her Father and if any neglect or defect were therein it was not her fault but the Defender ought to have done diligence debito â—â—mpore and therefore albeit the Tochar were not payed at least he must imploy his own part proportionable to what of the Tochar he hath received Which the Lords found relevant and if the Pursuer had not restricted her self to that proportion they would have sustained it simply for all the Defnders own part Kennedy contra Weir February 23. 1665. KEnnedy of Auchtifardel having charged William Weir upon a Bond of 300 merk He Suspends and raises Reduction upon Minority and Lesion The Charger answered Minority takes no place where the Minor is in dolo as si minor sein majorem dixerit but in this Bond the Suspender expresly acknowledged himself to be then Major The Suspender answered that eadem facilitate that he was induced to subscribe the Bond he might be induced to insert that Clause which therefore cannot prove unless it were otherways proven that he did induce the Charger to lend him Money on that ground The Lords found his acknowledgement in the Bond was sufficient unlesse he instructed that he was induced to insert that Clause not on his own motion or that the Charger knew that he was Minor or was oblidged to know the same by being his Tutor or Curator or might have visibly known the same by the sight of his age and thought it not reasonable to put it to the Debitors oath to disappoint the Creditor Jack contra Pollock and Rutherfoord Eodem die MArion Rutherfoord Married David Clerk and had no Contract of Marriage with him but he having acquired a little ruinous Tennement took it to her and him in Conjunct-fee and in the time of the Plagueâ— he provided her to the Annualrent of 5000 merk His Heirs raises Reduction of the provision as being in lecto agritudinis after he had keeped his house upon suspition of the plague of which he died It was alleadged for the said Marton that keping the house upon suspition of the plague could not be as in lecto aegritudinis unless it were proven that he was infected with the Desease before the provision was granted 2ly Even in that Case Defuncts are not hindered to give Liferents to their Wives for which there is a natural obligation according to Craigs opinion The Lords repelled the first alleadgence but found the second relevant in so far as might extend to a competent provision to the Wife and therefore having examined many Witnesses hinc inde upon the Estate of the Husband and the Tochar and frugality of the Wife and finding his means did consist in a Tenement worth 500 merk by year beside that inconsiderable Tenement wherein she was Infeft they restricted her Annualrent which came to 300 merk to 123. lib. which was about the Terce of the Tenement albeit Terces of Houses within Burgh are not due In this Process the VVife and her second Husband aâ—d having repaired the other little Tenement which was ruinous and builded it much better then ever it was for which they pursued for the Reparations The Lords found that they ought to have the Reparations decerned not only in so far as is necessary but in quantum the Heir will lucrari by getting greater mail to be payed at the Wifes death she leaving the Tenement in as good case as now it is Sir James Mersser of Aldie contra William Rouan February 24. 1665. SIr Iames Mersser of Aldie as Donatar to the Gift of ultimus haeres of umquhil Iohn Rouan pursues a Reduction of the Retour and Service of William Rouan Served
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because it
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reâ—â—ptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce 〈◊〉 but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ— though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ— a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ— contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâ—tior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâ—wer of Deputation which they found not to be annulâ—eâ— by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
non habente potestatem obtained payment of a Terms Rent before the Decreet of Reduction Ianet pursues for that Term and alleadges that the Decreet of Reduction could not be effectual till it were pronunced albeit it bear her Right to be null ab initio yet that is but stylus curiae It was answered that the Tennent payed bona fide after Reduction obtained and intimat to him and that the Lords may ex arbitrio find the effect of the Reduction either to be asententia Litiscontestation or a Citation In this Reduction the Lords Assoilzied the Tennent for this Term though before Sentence Earl of Winton contra Countess of Winton Eodem die THe Earl of Winton pursues a Reduction of an agreement made by his Tutors and Curators with my Lady giving her a certain Duty for her Interest in his Coal as being minor and laesed in so far as by her Contract she had only Right to the fourth part of the Coal in his Property now his Coal for several years has been in his Feuars Lands by Reservation in their Rights And also craved the bygons It was answered that bona fide possessor facit fructus consumptos suos the Lady by the Agreement could not compt for the years Duty she had gotten It was answered that this holds not in the case of Minority and Laesion It was answered that albeit Minority Repones as to any principal Right yet not as to the Fruits and accrescences medio tempore The Lords Reduced but Assoilzied the Lady from Repetition Sharp of Houstoun contra Glen Eodem die GLen Pursues for Mails and Duties of some Lands Houstoun compears and alleadgesthat he has Right to these Lands by an Apprizing expired It was answered his apprizing was null because it proceeded on four Bonds the Term of payment of one whereof was not come the time of the Appryzing and so not being due the Apprizing was void quoad totum It was answered the sum was due albeit the day was not come and so being but plus petitum tempore he was willing to admit the apprizing to be longer time by the double redeemable after the legal were expired then all the time he apprized before the hand The Lords found the Appryzing void as to that sum Whereupon occurred to them to consider whether the appryzing should fall in totum or stand for the other 3 Bonds And if it stood for these whether a proportionable part of the Lands appryzed effirand to the Bond whereof the Term was not come should be found free or if the rest should affect the whole Lands as if for these only the appryzing had been led wherein the Lords were of different opinions and recommended to the Reporter to agree the Parties Lady Otter contra Laird of Otter Eodem die LAird of Otter having Infeft his Wife in Conjunct-fee or Liferent in certain Lands cum molendinis did thereafter build a Miln thereupon and the question arising betwixt the Liferenter and the Heir who should have Right to the Miln The Liferenter alleadged aedificium solo cedit The Heir alleadged that a Miln is distinctum tenementum that cannot pass without Infeftment aud the Clause in the tenendo cum molendinis is not sufficient not being in the Dispositive Clause nor any Miln built then and he offered to make up all the Liferenters damnage by Building on her Ground The Lords found that the benefit of the Miln belonged to the Liferenter as to the Multures of all that was ground without the Thirlage but found it not to extend to Lands of the Defuncts which he had Thirled to the Miln John Hay of Knokondie contra Litlejohn Eodem die JOHN Hay pursues Litlejohn for the damnage sustained by a House belonging to Litlejohn falling on the Pursuers House It was alleadged the Defender was only Apprizer of a Liferenters Right and this behoved to lye upon the Fiar who was oblieged to uphold the Liferenters House The Lords found the Defender lyable seing he possest as Apprizer sixteen years and also intrometters with the profits of the House are liable for the damnage sustained thereby seing both Fiar and Liferenter were oblieged to uphold it and are liable de damno Lord Salton contra Laird of Park and Rothemay Feb. 20. 1666. THe Lord Ochiltry having a Disposition of the Estate of Salton from the umquhil Lord Salton in anno 1612. Disponed the same to Park Gordon Rothemay and others This Lord Salton having granted a Bond to Sir Archibald Stewart of Blackhall he thereupon apprized all Right that could be competent to the Lord Salton of that Estate which Right being now retrocessed to the Lord Salton he pursues Reduction of the Lord Ochiltries Disposition and of all these Rights founded thereupon in consequence The reason of Reduction is founded upon an Interdiction against the Lord Salton Disponer before his Disposition and there having been a Process formerly depending at the instance of umquhil Sir Archibald Stewart and being Transferred after his Death the Lords allowed the Process to proceed upon the Minute of Transferrence without Extracting the Decreet of Transferrence which behoved to include the Process and hail minuts which could not be done for a long time whereupon the Lord Salton now insisting in the principal Cause It was alleadged first No Process till the Principal Cause were wakened For albeit the principal Cause be Transferred yet it is but instatu quo and therefore being sleeping there can be no Process till after the Transferrence there be a wakening The Lords Repelled this Alleadgence and found the Transferrence sufficient without any wakening It was further alleadged Absolvitor because the Pursuers Title being an Apprizing the Defender has an anterior Apprizing which does exclude the Pursuer◠ay and while it be Reduced or Redeemed It was answered that the ground of this Pursute being a Reduction upon Interdiction the Interdiction cannot be directly apprized but only the Lands belonging to the Person Interdicted being Apprized all Apprizers or other singular Successors coming in the place of the Heirs of the Person Interdicted may pursue on their Rights and thereupon Reduce voluntar Dispositions made contrair the Interdiction which Interdiction is not a Right it self but medium impedimentum exclusivè of another Right as an Inhibition and as a first Appryzer cannot hinder a second Appryzer to make use of his Right except in prejudice of the first Appryzer so he cannot hinder him to make use of the Interdiction to take away a voluntar Disposition◠but prejudice of the first Appryzers appryzing as accords And in the same way a second Appryzer or any Creditor might pursue upon an Interdiction or Inhibition against a Creditor Which the Lords found Relevant and declared the Pursuer might Reduce this voluntar Disposition upon the Interdiction but prejudice of the Defenders appryzing contra Hugh Mcculloch Eodem die THe Laird of Balnigoun being arrested in Edinburgh for a Debt due to a Burges Heugh Mcculloch became Caution for him
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ— because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ— in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâ—lared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâ—uetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
is preferable to the Rebels base Infeftment It was answered that the King or his Donatar needed no possession nor can be prejudged for want of Diligence The Lords found the Creditors alleadgeance relevant Iack contra Mowat Eodem die THE Lords found that Iack having obtained Decreet as Assigney by his Father it was relevant for the Debitor to alleadge and prove by the Assigneys Oath that the Assignation was without a cause onerous and by the Cedents Oath that the Debt was payed before Intimation Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666. IN the Cause debated yesterday betwixt Sir Henrie Hoom and Sir Alexander Hoom. It was further alleadged for Sir Alexander Hoom that the Rebel had not only five years possession but was Infeft by an Infeftment holden of his Father which was cled with Possession before the Appryzers charge against the Superior in so far as the Infeftment bore a reservation of the Fathers Liferent and so the Fathers Possession was the Rebells Possession and was sufficient to validat the base Infeftment seing there could be no other Possession attained during his Fathers lifetime or at least there was reserved to the Father a yearly Rent and the Rebel gave his Father a Warrand in Writ to continue his Possession of such of the Lands for the same The Lords ordained the Donatar to condescend whether the Rebells Infeftment proceeded upon his Contract of Marriage And he declaring that it was by a distinct Right thereafter The Lords found the Possession of the Father not relevant it being betwixt Conjunct Persons privat and suspect For they thought if possession by such Reservation betwixt Father and Son were sufficient the Creditors would hardly be secure Dumbar contra Lord Duffus Eodem die THE Lord Duffus having obtained a Decreet of removing against Dumbar his Tennent and having execute the same by Letters of Possession The Tennents raises Suspension and Reduction of the Decreet and a Summons of Ejection the Reason of Reduction was that the Sheriff had done wrong in repelling and not expressing in the Decreet a relevant Defense 2dly That the Tennent could not be decerned to remove because he was already removed irregularly by Ejection and ought not to be put to defend in the removing till he were repossest spoliatus ante omnia est restituendus which he instructed by an Instrument taken in the hand of the Clerk of Court and where it was replyed before the Sheriff that he had not found Caution for the violent Profits He answered that he needed not seing the Pursuer himself was in possession by the Ejection It was answered that the Lord Duffus offered him to prove that all he did was to put in some Corns and Plenishing in an ouâ— house long after the warning of the Tennent that had taken the Roum and that he continued to possesse all the rest of the house and the whole Land by his Cattel till he was Legally removed and neither the Family nor Goods of the new Tennent came in till then It was answered that the alleadgeance was contrair to the Tennents Lybel of Ejection bearing that he was dispossest both from the house and Lands The Lords considering that the Tennents was only positive in Ejection from the House and had once acknowledged that he was not Ejected from the Land they Assoâ—lzed from the Reduction of the Decreet of Removing but they sustained the Action of Ejection and Repelled the Defenses as contrair to the Lybell Reserving to themselves the modification of the violent profits and the other party to debate whether after the Decreet of Removing the Tennent should have re-possession or only the profits or damnages George Tailzor contra Iames Kniter Junâ— 15. 1666. GEorge Tailzor having Appryzed some Lands in Perth set a Tack of a part of it to Iames Kniter who thereafter Appryzed the same Tailzor now pursues a Removing against Kniter who alleadged absolvitor because he had Appryzed the Tenement within year and day of the Pursuer and so had Conjunct Right with him It was answered that he could not invert his Masters Possession having taken Tack from him The Defender answered it was no inversion seing the Pursuer by Act of Parliament had Right to a part but not to the whole and the Defender did not take Assignation to any new Debt but to an old Debt due to his Father The Lords sustained the Defense he offering the expenses of the Composition and Appryzing to the first Appryzer conform to the Act of Parliament Alexander Stevinson contra Laird of Hermishills Eodem die ALexander Stevinson as Assigney by his Father pursues Hermishills for payment of a Bond who alleadged absolvitor because the Defender as Heir to his Father had right to a Bond due by the Pursuers Father before the Assignation after which the Assignation was a Deed infraudem Creditorum and so null It was answered non relevat unless the Cedent had been Bankrupt or at least insolvendâ— The Lords Repelled the Defense in respect of the Answer The Defender furder alleadged Compensation upon the said Bond which was relevantâ— against the Pursuer both as Heir to and as Assigney by his Father It was answered non relevat against the Pursuer as Executor but for his fourth part being one of four Executors 2dly The Defenders Father was Tutor to the Pursuer nondum reddidit rationes The Lords found that Compensation being equivalent to a discharge taking away the Debt ipso facto it might be proponed against any of the Executors in solidum but in regard the Tutors accompts were depending the Lords sisted his Process till he Tutors Compts proceeded Sir Robert Sinclar contra Laird of Houstoun Eodem die SIr Robert Sinclar pursues a Poynding of the Ground of the Lands of Leni upon an old Annualrent of 20. merks Constitute above a 100. years agoe Houstoun alleadged absolvitor First Because he brooked these Lands past Prescription peaceably without any pursuit upon this Annualrent 2dly Because this Annualrent was base and never yet cled with Possession and his Infeftment was publick It was answered to both that the Pursuer produced a Decreet of Poynding the Ground in Anno 1608. Since which the Pursuers Minority being deduced it is not 40. years Likeas there is produced a Precept of Poynding for the said Annualrent It was answered that the Decreet in Anno 1608. was only against the Tennents and Possessors and so is null the â—eretor not being called It was answered First That albeit the Decreet had been defective for not calling the Master yet it was sufficient to interrupt Prescription 2dly It was sufficient to give possession and to validat a base Infeftment by a civil possession for as natural possession by the Tennents payment would have been sufficient though without their Masters knowledge or consent So a Decreet yea a citation against them is sufficient for a possession as being equivalent to a natural possession and albeit the Proprietar could not be
is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ— acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
of Parliament and stented the same upon the Parochioners and others They did Supplicat the Lords for Letters of Horning conform to the stent Roll in respect that the said late Act of Parliament being the twentieth Act of the third Session of the last Parliament bears no warrand for Horning The Lords ordained Letters of Horning to be past Sir Alexander Vrquhart contra Sherem Eodem die IN anno 1636 Sir Thomas Vrquhart of Cromerty gave a Security of a House and some Lands and a Salmond-fishing near Bamff for 4000 merks and in anno 1637 There was 700 merks eiked and a Back-bond relating to the first Wodset Renounced and a full Possession granted on both There is a Clause of Redemption and Requisition upon payment of the principal Sums and Annualrents resting for the time Sir Alexander Vrquhart pursues Sherem as now having Right to the Wodset for Compt and Reckoning Who alleadged Absolvitor because this being a proper Wodset wherein he had the full Possession hazard of the Profits was not comptable especially seing the chief part of the Wodset was a Fishing which was most uncertain and though de facto he happened to get much more then his Annualrent yet it is no Usurary Wodset seing he might have losed all The Pursuer Replyed that by the saids Clauses of Redemption and Requisition he was not only obliged for the principal Sums but for the bygone Annualrents resting unpayed so that the Wodsetter had no hazard and therefore it is no proper Wodset and he is comptable The Defender answered that the Clause was only adjected ex stylo for it did not bear that what Annualrent should be resting over and above Intromission should be Consigned but the whole resting Annualrents or at least it had been adjected in respect of the Back-bond restricting the first Wodset or in case the Wodsetter had been excluded from Possession The Lords found the Defender comptable in respect of the saids Clauses but there occurred to themselves this question whether the Superplus more then the Annualrent should compense and abate the principal Sum at the time of the Intromission or only now whereanent the Lords were of different opinions many thought that when the meaning of the Parties was not full and express that should be followed which is most ordinar amongst provident Persâ—ns hardly could it be thought that any would take a Wodset upon these Terms to draw out the principal Sum with excress yearly but the Lords reserved that Point to be considered while it appeared whether there was any excress above the Annualrent Monteith contra Laird of Gloret Dec 7 1666 IN a Competition between Monteith and the Laird of Gloret It was alleadged for Monteith that he ought to be preferred to the Sums in question because Glorets Assignation was obtained by Hamiltoun of Kinglass and was lying by him blank in the Assigneys name and by him filled up with Glorets Name and delivered to him so that Kinglass being his true Author any Discharge granted by him while the Bonds were blank and in his power was relevant against Gloret his Assigney Ita est Kinglass while or before the Bonds were in his power did equivalent to a Discharge viz. oblieged himself to pay this Sum and relieve the principal Debitor thereof and instead of the Discharge he took this blank Assignation filled up by him in Glorets Name 2ly The Charge though in Glorets Name is to Kinglass's behove and if he were Charging his Obliegment to pay the Debt would exclude him And therefore must exclude the Charger It was answered that Gloret was in bona fide to take this Assignation knowing nothing of the Back-bond and that an Obliegment to satisfie the Debt was not equivalent to a Discharge Neither is the having of the Assignation though blank equivalent to an Assignation unless the Name of Kinglassie had been filled up and Intimat The Lords having taken Glorets Oath before Answer wherein he acknowledged that he got this Assignation from Kinglassy and payed no money for it and that it was on these Terms Kinglassie being owing him a greater Sum he was to allow what he got by this Assignation in part thereof but Deponed he knew not if it was blank when Kinglasse had it or not The Lords found that the Assignation being accepted by Gloret in Terms aforesaid that it was but a Corroborative Security and so found the Assignation to Kinglassies behove and found the Back-bond Relevant to exclude him and therefore preferred Monteith Sir George Mckenzie contra Fairholm Eodem die SIr George Mckenzie Advocat pursues a Reduction of a Bond granted by him as Cautioner for his Father the Bond is now Assigned to Iohn Fairholm on these Reasons First That the Bond is null as being done by a Minor being in his Fathers Family and not being Authorized by his Father as lawful Administrator And therefore in the same condition as a Minor having Curators they not Confirming such Deeds are null and may be Reduced at any time though they have not been quarrelled within the Minors Age of twenty five 2ly Because Curators being chosen as a Security to the Levity of Minors they cannot Authorise the Minor to the Curators behove but such Deeds are null So neither could the Pursuers Father Authorize him to be Cautioner for himself The Defender answered First That albeit a Father as lawful Administrator and Tutor to his Children excludes all other Tutors yet he is not Curator after their Pupillarity because they may choose other Curators and that filij familias in the Civil Law could not Contract without their Fathers consent It was a special Statute per Senatus consultum Macedonianum and not as Curator 2ly The Father cannot be lyable for his Omissions by his unprofitable Authorizing his Children for such Actions would be contra pietatem obsequium 3ly There is nothing more frequent in Scotland then Sons to have a distinct Estate while in their Fathers Families given by the Father or otherwise whereof they have the full Administration without Authority 4ly Whatever may be alleadged for Children residing in the Family of their Father yet that cannot be extended to Children Acting by themselves far from their Fathers Family but the Pursuer was so living and Acting at Edinburgh attending the Tolbooth and was majori aeâ—ati proximus being past 20. The Pursuer answered that his Reason stood still Relevant because by the Law of Scotland a Father is lawful Administrator to his Children and is not ordinarly designed lawful Tutor but lawful Administrator which does not only endure during their Pupillarity but during their Minority but at least till they be Married or Forisfamiliat or till they have a distinct Subsistence or Calling And albeit the Children be not Residing in the Family yet they are in familia so long as they are there and not separat from the same as the Pursuer was and albeit the Son may choose other Curators if the Father permit or the Judge think
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
Sub-tennent to the principal Tennent The Lords Debate the same amongst themselves some being of opinion that the Sub-tennents payment bona fide before the Term was sufficient because he was only obliged to the principal Tennent and he might have a Tack for a less Duty then he or for an elusory Duty which if he payed and were Discharged he was not conveenable and oft times the Sub-tennents Term was before the principal Tennents Yet the Lords found that payment made bona fide by the Sub-tennent to the principal Tennent was not Relevant and that because the Master of the Ground has Action not only against the Tennent but also against the Sub-tennent or any who enjoyed the Fruits of his Ground and may conveen them personally for his Rent as well as really he has an Hypothick in the Fruits neither can the Sub-tennent prejudge the Master of the Ground of that Obligation and Action by paying before the Term otherways he might pay the whole Terms of the Tack at the very entry thereof and so Evacuat the Heretors Interest as to the Sub-tennent yeaâ— though the Sub-tennents Tack-duty were less then the principal Tennents it would not Exclude the Heretor pursuing him as Possessor for the whole but only give him Regress for Warrandice against the principal Tacks-man but the Term being come if the Heretor Arrested nor pursued not the Sub-tacksman he might impute it to himself and the Sub-tacks-man might justly presume that the principal Tacks-man had payed and so might pay him bona fide Countess of Hume contra Tennents of Alcambus and Mr. Rodger Hoge Eodem die THe Countess of Hume being provided by her Contract of Marriage to the Lands of Alcambus Pyperlaw and Windilaw extended to 24 Husband-Lands she gets a Charter upon her Contract bearing For Implement thereof to Dispone to her the Lands and Barony of Alcambus c. with a Seasine taken at Alcambus She thereupon pursues the Tennents Compearance is made for Mr. Roger Hog and other Creditors who bought these Lands from Wauchtoun who had bought them from the Earl of Hume and alleadged Absolvitor from the Mails and Duties of the Miln of Alcambus because my Lady by her Contract of Marriage was not provided to the Miln neither was she Infeft therein per expressum and Milns do not pass as Pertinents without a special Infeftment 2ly Absolvitor for the Rents of Pyperlaw and Windilaw because my Ladies Seasineâ— bears Only Inâ—eftment in the Lands of Alcambus and mentions not these Lands which are particularly in the Contract The Pursuer answered to the first That by her Charter she was Infeft in the Lands of Alcambus with the Milns with other Lands mentioned therein c. 2ly That Alcambus bore by her Charter to be a Barony which is nomen universitatis and carries Milns albeit not exprest To the second It is offered to be proven that Alcambus is the common known Designation and is commonly known to comprehend Pyperlaw and Windilaw as Parts and Pertinents thereof and that they are all holden of one Superiour and lyes contigue so that they are naturally unite and without any further union in a Barony or Tenement and a Seasine upon any place of them serves for all It was answered for the Defender to the first Point That Alcambus was not a Barony neither doth the Designation thereof by the Earl of Hume make it a Barony unless it were instructed 2ly The adding of Milns in the Charter if the Lady had not Right thereto by the Contract is a Donation by a Husband and is Revocked by his Disposition of the Lands of Alcambus and Miln thereof to the Laird of Wauchtoun the Defenders Author The Pursuer answered that the Charter was but an Explication of the meaning of the Parties that by the Contract the intention was to Dispone the Miln especially seing the Miln hath no Sucken but these Husband-Lands of Alcambus which are Disponed without any Restâ—iction of the Multure so that the Miln would be of little consequence without the Thirâ—e The Lords having compared the Contract and Charter found that by the Contract the Lady could not have Right to the Miln 〈◊〉 she would be free of the Multures and found that the Charter did not only bear for Implement of the Contract but also for love and favour and so found the Adjection of the Miln to be a donation Revocked Nor had they respect to the Designation of the Lands as a Barony but they found it Relevanâ— if the Lady should â—rove that it was a Barony to carry the Right of the Miâ—n or that in my Lords Infeftments there was no express menâ—â—â—n of the Miln but that my Lady had them in the same Terms my Lord had them They found also that Reply Relevant that Alcambus was the Name of the whole Lands to extend the Sea sine to the Lands of Pypâ—rlaw and Windilaw though not named and that they might be yet Parts and Pertinents of the Tenement under one Common Name Andrew Smeatoun contra Tabbert Feb. 7. 1667. ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate pursues a Poinding of the Ground and produces his own Infeftment and his Authors but not the original Infeftment of the Annualrent It was alleadged no Process until the original Infeftment were produced constituting the Annualrent especially seing the Pursuit is for all bygones since the date of the Authors Infeftment so that neither the Pursuer nor his immediat Author hath been in Possession 2ly If need beis it was offered to be proven that before the Rights produced the Authors were denuded It was answered that the Pursuer hath produced sufficiently and that his Right was cled with Possession in the Person of his mediat Author before the years in question To the second this Pursuer hath the benefit of a possessory judgement by his Infeftment cled with Possession and is not obliged to Dispute whether his Author were denuded or not unless it were in a Reduction The Lords sustained the Pursuers Title unless the Defender produced a Right anterior thereto in whiâ—h case they ordained the Parties to be heard thereupon and so inclined not to exclude the Pursuer upon the alleadgeance of a possâ—ssory judgement but that Point came not fully to be debated It is certain that a possessory judgement is not relevant in favours of a Proprietar against an Annualrenter to put him to Reduce because an Annualrent is debitum fundi but whether an Annualrenter possessing seven years could exâ—â—ude a Proprietar until he Reduce had not been decided but in this case the Lords inclined to the Negative Mr. Alexander Foulis and Lord Collingtoun contra Tennents of Innertyle and La. Collingtoun Feb. 9. 1667. SIr Iames Foulis of Collingtoun being in treaty of Marriage with Dam Margaret Erskin Lady Tarbet She did dispone 36 Chalders of Victual of her Joynture in the North to a confident Person that she might make use thereof for the benefit of
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
Pursuers licence he could give licence to no other Mr. Iohn Forbes contra Innes February 20. 1668. MAster Iohn Forbes insisted in the Cause against Margaret Innes mentioned in the 8th of Ianuary last for Mails and Duties as Assigney by Margaret Allardice who being Infeft in Liferent in principal Lands and Warrandice Lands and the principal Lands being evicted she and the Pursuer her Assigney returns upon the Warrandice Lands wherein Margaret Innes is Infeft in Liferent by her Husband who stood publickly Infeft therein upon the Resignation of Margaret Allerdices Husband and who alleadged Absolvitor because the Defender and her Husband being Infeft and in Possession these 20. years past have the benefit of a Possessory judgement and so cannot be put from her Possession till her Right be Reduced The Pursuer answered that the benefit of a Possessory judgement can take no place against a pursuit upon an Infeftment in Warrandice unlesse the Possession had been seven or more years after the Eviction for before the Eviction there could be no Pursuit upon the Infeftment of Warrandice in the same case as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime when the Wife could not pursue The Defender answered that the Pursuer ought in a petitory judgement to have declared the Distresse before he could put the Defender from her Possession The Pursuer answered there was no Declarator required but only the Eviction which gives immediat recourse upon the Warrandice Lands The Lords repelled the Defense and found no need of a Declarator or Reduction to attain recourse and that a Possessory judgement was not compent upon any Possession anterior to the Eviction The Defender further alleadged Absolvitor because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice which is base holden of her Husband and the Defender and her Husbands Infeftment are publick holden of the Superior and albeit posterior to the Infeftment of Warrandice yet is preferable the Infeftment of Warrandice being base never cled with Possession The Pursuer answered that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands especially now when all Seisings must be Registrat as was lately found in the Case of Iohn Scot and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death but her Husband was in full Possession of both which is more then sufficient The Pursuer answered that in Scots Case this was singular that in Iohn Scots Case both the Principal and Warrandice Lands were granted in an Infeftment and so the Person Infeft being in Possession of the principal Lands his Infeftment could not be partly publick and partly privat but this Infeftment in Warrandice is ex intervallo The Lords repelled also the Defence and found the Infeftment in Warrandice though base sufficient the Person Infeft being in Possession of the principal Lands albeit the Infeftment in the Warrandice Lands was ex intervallo Farquhar of Tonley contra Gordoun Eodem die FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion It was alleadged Absolvitor because he had Homologat the Bond in so far as he being Cautioner in the Bond he had pursued releif and obtained Decreet for releif which did necessarly import that he acknowledged himself bound else he could not have craved releif The Pursuer answered that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him against which he could have no objection for the benefit of Reduction upon Minority is peculiar to the Minor himself and no other can make use of it and in his pursuit of releif he might very well have declared that in case he obtained not releif against the principal Debitor he might free himself by Reduction against the Creditor so that Homologation being a tacite consent can never be presumed where the Deed done might have another intent and his pursuit for relief was not to bind himself but to louse himself he did also alleadge that the pursuit of releif was at his Fathers instance and his own promiscuously and after the Decreet was thereupon extracted he gave it in again and took a new Extract which bears not a releif for him of this Debt The Lords found the Pursuit and Decreet of releif to be no Homologation to exclude this Reduction The Defender then offered him to prove that the Pursuer was Major when he Subscribed so that the Lybel and Defence being contrary and great advantage arising to him who had the benefit of Probation by Highland Witnesses The Lords resolved to prefer neither to probation but before answer ordained to adduce such Evidents and Adminicles as they would use to prove the Pursuers age that they might prefer the strongest and clearest Probation Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament and having obtained licence to pursue pursues the Lady Clerkingtoun as principal Executrix who alleadged no Processe upon the licence because licences are only competent to Executors principal before there be any Confirmation after which the Commissars neither use nor may give licence ad omissa as was found the 14. of December 1621. Halliday contra observed by Dury The Pursuer answered that there was more reason to sustain licences after the principal Confirmation when the best of the Inventar was given up and what remained was uncertain and for the practique the Lords had since allowed licences after Confirmation The Lords repelled the Defense and Sustained the Processe upon the licence Bartholomew Parkman contra Captain Allan Eodem die CAptain Allan a Privateer having taken Bartholomew Parkman an Swede he obtained him to be Declared Pryze by the Admiral upon this ground mainly that he had carried Tar being Counterband Goods from Norway to Holland then in Enmity with the King and from thence carried ballast to France and returning with a Loadning of Salt was taken because by the Captains Commission from the Admiral he was warranted to to take Ships carrying Counterband Goods or to take the saids Ships in their immediat return after they have carried Counterband Goods to the Kings Enemies which hath always been the Custom of Scotland as appears by Commissions granted by the Admiral Anno 1627. of the same Tenor and by a Decreet of the Admiral at that time finding the Lybel relevant bearing that a Ship was taken in her return having taken in Counterband to the Enemy in that Voyage which is founded upon evident reason because that while Ships are going towards the Enemy it is but an intention of Delinquence against the King and assisting his Enemies but when they have actually gone in and sold the Counterband it is delictum Commissum and though it might infer a quarrel against the Delinquent
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
to the Kings Sub-vassals because it bears only Free-holders and bears that the King shall accept of the Feu Duty during the Ward but the Ward of his Sub-vassals would never fall in the Kings hand and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expresly that there was no warrand by the first Act for any Feues but such as were granted by the Kings immediat Vassals It was answered for the Defenders that they oppone the first Act of Parliament bearing expresly a general Reason of granting Feues for the policy of the Kingdom and that the King would give Example to the rest and that the Act no wayes restricteth to Free-holders of the King but others who hold of Subjects Ward are called Free-holders in opposition to Feues which is also cleared by the 91. Act Parliament 1503. The Title whereof bears a power to all persons Spiritual and Temporal to set their Ward Lands Feu which clears the meaning of the Parliament and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feues set to Sub-vassals in time thereafter and as to the Narrative thereof the Statutory part and not the Narratives of the Acts of Parliament which the Parliament doth not much notice are our Rules and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the Kings immediat Vassals should grant Feues more then Sub-vassals The Lords sustained the Feues being granted before the Act of Parliament 1606. Andrew Gray contra Howison and Gray Eodem die ANdrew Gray being Infeâ—t as Heir to his Grandsire in certain Lands of the Barony of Foules holden blensh of the House of Gray pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson as long Posterior to his Right Compearance is made for William Gray of Haystoun as being Infeft by the Lord Gray and Sir George Kinnard who was Donator to the Recognition of the Estate of Gray by the alienation of this Lords Father which Recognition hath been declared by the Lords and alleadged that he hath the only Right because by the Recognition the old Rights of the House of Gray being void the Pursuers Subaltern Right fell in consequence therewith The Pursuer answered that before the Defenders Right he had obtained a Precept of clarè constat acknowledging his old Right whereupon he was Infeft It was answered that the Precept doth bear expreslly to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour and so being a necessar Act and not voluntar it could be no acknowledgement or Ratification of the Pursuers Right The Lords having considered the Precept that albeit it mentioned the Retour in obedience to the Precept yet it bore also quoniam mihi clare constat c. in the common strain of a Precept of clarè constat acknowledging the Pursuers Predecessors Right and his Own They found that it did exclude the Donator and all having Right from him thereafter and after the Seasine past thereon George Heriot contra Town of Edinburgh Iune 25. 1668. GEorge Heriots Father being Infeft in an Annualrent out of certain Tenements in the Canongate obtained himself to be Served Heir in special therein before the Baillies of the Canongate and because the samine is within a Regality having a proper Chappel and was not to be Retoured to the Kings Chancellary So that Precepts were not to be had out of the Chancellary against the Town of Edinburgh Superiours to Charge them to Infeft him therefore George upon Supplication obtained Letters from the Lords to Charge them and they being now Charged he pursues a Poinding of the Ground It was alleadged for the Town no Process for poinding of the Ground till the Pursuer were Infeft in the Annualrent It was answered that he having done Diligence against the Town it was equivalent and did exclude them from proponing that alleadgance It was answered that no personal objection against the Town could be a sufficient Title against this Action without a real Right The Lords found no Process till Infeftment but declared that so soon as the Magistrates should be Denunced they would grant Warrand to the Director of the Chancellary to issue a Precept for Infefting the Pursuer for supplying the place of the Magistrates and their Contumacy Black contra Scot. Eodem die ALexander Black having obtained a Decreet before the Commissar of St. Andrews against Iames Scot for 126. pounds pursues a Transferrence thereof against the Representatives of Iames Scot who alleadged absolvitor because the Decreet is ipso jure null being given by a Commissar in a matter not Consistorial far above the quantity allowed by the Injunctions and there being nothing to instruct but the Defenders being holden as confest the Decreet at least must be turned to a Libel and yet proven 2. If the Defunct had been obliged to have compeared he would not only have denyed the Receipt of the Vinegar and Grapes Libelled but he would have offered to prove and the Defender offers yet to prove that they were refused and lay publickly upon the Shore where they were disloaded 3. It was offered to be proven the Defunct was lying on Death-bed the time he was Cited to Depone and was holden as confest The Pursuer answered that albeit these Reasons were relevant to Repone a Party holden as confest to their Oath yet were not sufficient to annual the Decreet seing the Pursuer lost his Probation the Receipt of the Goods having been two years agoe and albeit this sum exceeded the Commissars Injunctions yet the violation thereof does not annual his Sentence or take away his power unlesse the samine had been objected upon Compearance The Lords found not the Defenses Relevant to annul the Decreet or to hazard the loss of the Pursuers Probation but seing the Defender burdened himself with a contrair Probation The Lords inclined to admit the same if it were sufficiently pregnant and therefore ordained the Pursuer before answer to adduce Witnesses that the Goods were never taken off the Shore but Boated there Inglis contra Laird Balfour Eodem die THere being an Un-printed Act of Parliament for uplifting the Taxt and Loan of the Shire of Fife for Relief of some Noblemen ingaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire to conveen the persons resting and accordingly Cited the Laird of Balfour and he not compearing ordered quartering against him he Suspends on this Reason that this being a privat and particular Act of Parliament to which he was not called is salvo jure and could not burden his Lands of Creik because he is singular Successor therein to the Laird of Creik It was answered that there is no exception of singular Successors in the Act of Parliament so that this Act being a Reviving of the
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
to the Tolbooth there to remain during their pleasure and Fined him in 500. Merks Earl of Wintoun contra Gordoun of Letterfary Iuly 15. 1668. THe Earl of Wintoun having Appryzed certain Lands in the North pursues for Mails and Duties It was alleadged for Gordoun of Letterfary that he stands Infeft in these Lands and by vertue of that Infeftment is seven years in Possession and thereby has the benefit of a possessory Judgement and must enjoy the Mails and Duties till his Right be Reduced The Pursuer answered that he had Intented Process upon his Right for Mails and Duties Anno 1658. whereby the matter became litigious and which stops the course of any possessory Judgement till that Citation expyre by the course of 40. years in the same way as it is in Removings or Ejections where Summons once Intented does not Prescribe by three years thereafter but lasts for 40. years The Defender answered that the case is not alike for the benefit of a possâ—ssory Judgement is introduced for the Security of Persons Infeft that they be not summarly put to Dispute their Authors Rights which are oftimes not in their hands but in the hands of their Authors or Superiours and there was never any Reply Sustained against the same unless it were Vitious or Violent or Interrupted but here the last seven years Possession after that Citation is neither Interrupted nor Vitious and these being no stop to take away the Effect of that Citation it were of bad consequence if Persons Infeft 39. years after a Citation behoved Summarly to Dispute their Rights The Lords Sustained the Defense of the Possessory Judgement upon seven years peaceable Possession before the Citation and Repelled the Reply The Pursuer further Replyed that in the seven years after the Citation there were some years wherein there was a surcease of Justice and no Courts in Scotland 2dly The Citation was by his Tutors and Curators and he was minor during the seven years It was answered that a possessory Judgement was competent against minors and there was no respect of minority therein which is only excepted in the great Prescription extinguishing the Right but in the possessory Judgement in Relation to the way of Process and the Fruits in the mean time as in all Prescriptions tempus continâ—um and not tempus utile is respected The Lords also Repelled both these Replyes and notwithstanding thereof Sustained the Exception on the possessory Iudgement Sir William Steuart contra Murrays Iuly 17. 1668. SIr Iames Murray his Estate being Appryzed by many of his Creditors Sir William Steuart one of the Appryzers pursues the rest for Compt and Reckoning of a proportionable part of the Rents in respect that his Appryzing is within a year of the first effectual Appryzing and comes in therewith pari passu by the late Act of Parliament betwixt Dâ—bitor and Creditor It was alleadged Absolvitor First Because the Pursuers Appryzing is incompleat nothing having followed thereupon now these 16. or 18. years and by the Act of the late Parliament anent the Registration of the allowance of Appryzings that is declared to be a necessar Solemnity for all Appryzings led since Iune 1652. and this Appryzing is not yet allowed It was answered that by the late Act of Parliament the Certification of the want of allowance is not that the Appryzing shall be null but that posterior Appryzings first allowed shall be preferred but the Act betwixt Debitor and Creditor brings in Appryzings together deduced within a year according to their Dates without mention of allowance and is posterior to the said other Act and cannot be Derogat from thereby nor does the Act require Infeftment or any thing else but takes away the preference of Appryzings by the former Act as to such as are led within a year The Lords Repelled this Defense and Ordained the Pursuer now to allow his Appryzing which they found sufficient The Defenders further alleadged Absolvitor because the Pursuer had accepted a Disposition from Sir Iames Murray the common Debitor of a Tenement in Edinburgh bearing expresly in satisfaction of his Debt which is now produced by himself The Pursuer answered First That he was excluded from the benefit of that Disposition by Eviction by the Earl of Panmure who Appryzed before he was Infeft 2dly That whatever it bear it was but truely granted for Security for there is produced an Assignation by Sir Iames of certain sums to the Pursuer for the same Debt which could never have been if the first had been made in satisfaction The Defenders opponed the Disposition bearing expresly in Satisfaction the benefite whereof accrescing to them upon the Pursuers Receiving the Disposition cannot be taken from them by any posterior Writ of the Common Debitor nor are they obliged to Dispute whether it was valid or effectual seing it was accepted and the Eviction doth not annul the Acceptance but giveth place to the Clause of Warrandice contained in the Disposition which is Personal and reacheth only the Common Debitor and not the Defenders 2dly It was the Pursuers own fault that he was excluded in not Infefting himself upon his Disposition which he received before Panmuire's Appryzing It was answered that he could not compel the Superiour to receive him and that the Baillies of Edinburgh required bygone Sess and Feu-duties to be payed before he were Infeft which he was not obliged to pay seing by the Disposition he was to be free of all Incumberances It was answered that the Baillies of Edinburgh refuse no body as is known and these Incumberances were but to be purged by a personal obligement of the common Debitors neither did the Pursuer ever give back the Disposition The Lords Sustained this Defense and found the receiving and retaining the Disposition in Satisfaction sufficient to exclude the Pursuer It was further alleadged for Patrick Murray of Deuchar that he has Right to the Lands of Deuchar not only by Appryzing but by a voluntar Disposition whereupon he was Infeft before the Pursuers Appryzing and hath been by vertue thereof in peaceable Possession these 16. years and so hath the benefit of a possessory Judgement and a prior more valide Right It was answered that this voluntar Disposition was granted after the Denunciation of the Pursuers Appryzing after which the common Debitor could not prefer any other Creditor by his voluntar Deed and so the Denunciation making the matter litigious any posterior Possession is Vitious and cannot give the benefit of a possessory Judgement neither is the Disposition being after the Denunciation a valide Right but especially it being considered that the Act of Parliament brings in this Pursuer with the other prior Appryzers as if they had been in one Appryzing and several of the other Appryzings are led and Infeftment thereon before the Disposition The Lords Sustained this Defense and found that the Denunciation did not take away the benefite of a posterior possessory Iudgement Lord Dumfreis contra Smart Iuly 18.
his Fathers Life It is an evidence he acquiesced to his Fathers Provision and cannot seek Annualrent against his Fathers Executors his Father having Alimented him neither is he lyable for that rigor that other Tutors are The Lords Repelled the Reasons as to the principal Sum and found that the Fathers Legacy was not in satisfaction of the Grand-Fathers Legacy but found no Annualrent due but Suspended the Letters simpliciter as to Annualrent Sir Alexander Frazer contra Alexander Keith December 16. 1668. SIr Alexander Frazer Doctor of medecine having purchased the Lands of Mâ—ekelty from Andrew Frazer who had Appryzed the same from Alexander Keith pursues a Declarator of the expiring of the Appryzing and of his Right of the Lands thereby It was alleadged for Alexander Keith that he had Depending Actions of Reduction against the Grounds of the Appryzing and thereupon alleadged that the saids Sums were satisfied before the Appryzing at least by the Pursuer or his Authors Intromissions with the Rents of the Appryzed Lands within ten years after the Deducing thereof During which time the Legal was unexpired by the late Act betwixt Debitor and Creditor whereby the Legal of Appryzings led since 1652. are prorogat for three years And as to the first point he alleadged that the ground of the Appryzing being a minut of Alienation betwixt the said Alexander Keith and Andrew Frazer whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender the Tenor of which minute is that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands and to purge all Incumberances thereupon and that the price shall not be payable till the said Alexander be put in Possession There is also a Commission therein granted to the Defender to purchase two expired Appryzings and to satisfie any other Incumberances and to Serve the said Andrew Heir to Thomas Frazer his Father and to obtain the said Andrew Infeft as Heir to his Father and likewise the Defender himself in the Lands so that the Right the Disponer had being only a back Bond granted by Frazer to Staniwood thereafter Lord Frazer by which he obliged himself to Denude himself of the Lands of Mickeltie in favours of the said Andrew Disponer Which back Bond was Appryzed by the two expired Appryzings but could not reach the Lands of Stranduff because Staniwood was not Infeft therein nor did the back Bond bear the same and therefore the Defender was necessitat to purchase the Right of a third Appryzing led at the Instance of Craigivar against Andrew Frazer the Disponer as lawfully Charged to Enter Heir to Thomas Frazer his Father who died last Infeft in the Lands of Stranduff and which would have excluded any Right that the Defender had from Andrew Frazer especially seing the Sum on which Craigivars Appryzing proceeded was a Debt due by the said Thomas Frazer to William Frazer which William Frazer raised a Pursuit thereupon against the said Andrew Frazer as Representing Thomas his Father and raised Inhibition upon a Dependence which Inhibition is Execute and Registrate against Andrew Frazer before he Disponed the Lands after which Dependence the matter being referred to Arbiters they Decerned Andrew Frazer to pay to the said William Frazer two thousand merks out of the first and readiest of the price of Miekeltie due by the Defender Alexander Keith or out of any other Goods or Sums belonging to the said Andrew so that the Decreet Arbitral upon the Submission being in the same Terms was equivalent to an Assignation or a Precept and the Defender Alexander Keith satisfying that Sum it is in effect payment of so much of the price and Craigivars Appryzing proceeding on that same Sum it was most necessar for the Defender to Acquire that Appryzing as proceeding upon a Right whereupon Inhibition was used before the Minute and upon a Decreet Arbitral in effect Assigning William Frazer to so much of the Sum due by Alexander Keith The Pursuer answered that the Defenders alleadgence ought to be Repelled because the Acquiring of Craigivars Appryzing was altogether needless and no way warranted by the Minute and so cannot exhaust the price because that Appryzing was led 10. years after the Minute and the Defender having accepted a Commission to do all things necessar for Establishing of his own Right he ought to have Served the Disponer Heir to his Father and to have Infeft him in Stranduff and to have Infeft himself upon the Disponers Resignation Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust he ought to have procured the same to have been Established in his Person as coming in the place of Andrew Frazer to whose behove the Trust was which would for ever have Excluded Craigivars Appryzing being long posterior to the Defenders Commission contained in the Minute so that it was his own fault that he suffered another to Appryze neither could the Inhibition have prejudged him though prior to the Minut in respect it was upon a Dependence upon which no Decreet in favours of the Inhibiter could ever follow the Cause being Extinct by Transaction and Decreet Arbitral neither is there any Process Extant neither is the Decreet Arbitral equivalent to an Assignation and Precept because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender nor doth it declare that that Sum shall belong to him but only Decerns Andrew Frazer to pay out of Keiths Sum or any other so that thereupon no Action could have been effectual against Keith to pay the Sum but only against Frazer himself The Defender answered that albeit no Sentence of a Judge proceeded upon the Dependence the Sentence of the Arbiters being in eadem causa was equivalent and whereas it is alleadged that the Defender had a Commission to perfect his own Security by the price left in his hand It was answered that the Commission being for his own behove and for his own Security he might make use of it or not make use of it as he pleased especially seing the Disponer was obliged to perfect the Defenders Security 2dly In the Minute there was no Procuratory of Resignation neither were the old Evidents Delivered to the Defender so that he could neither obtain Frazer to be Infeft much less himself upon Frazers Resignation wanting a Procuratory The Pursuer answered that the Commission being a Mandat accepted by the Defender did ex natura mandati bind the Accepter to do Diligence neither is it to his own behove but was also to the Disponers behove that his obligements might be fulfilled and his price not stopped and although the Minute want a Procuratory of Resignation that is no way Relevant for if the Defender had required a Procuratory of Resignation from the Disponer or had required the Writs to instruct the Service being in the Disponers hand and had been refused of either he had been in no fault but without any Diligence to suffer another
was no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
him and had at last found him in the Tolbooth of Edinburgh for the same Debt where he yet was in as good condition as when he first escaped The Pursuer answered that the Rebel had escaped by the fault or neglect of the Jaylour for whom the Town was answerable in so far as they had given him the liberty of all the Rooms in the Tolbooth and that when he escaped he was left in the outmost Room and his Brother Son was permitted to abide within with him and the Catband on the outside of the Tolbooth Door was not put on and Locked which would have so secured the Door that nothing the Prisoner could have done within could have opened the same and that the Tolbooth Lock had a double and single Cast and when it was Locked only with the single Cast the Bolt might be thrust back but when with the double Cast it had a strong Backsprent and could not be thrust back and that at the time of the escape the Lock had but the single Cast so that the edge of the Stone being broken off there was access to press back the Bolt To the second it was answered that the Rebel having escaped through the Town or their Servants neglect jus erat acquisitum to the Pursuer making them lyable which could not be taken off by any Incarceration thereafter unless the Magistrates had followed him in the very Act of escape and recovered him but now they have six Moneths after his escape put him not in the Tolbooth of Pearth but in the Tolbooth of Edinburgh The Lords being unwilling to give either Party the choose of Witnesses for Probation had before answer appointed either Party to adduce Witnesses anent the condition of the Tolbooth and the manner of the Rebels escape which being now advised The Lords found that by the most pregnent Probation it was proven that the Catband used sometimes to be on in the day time and sometimes not and that Prisoners for Debt had the liberty in the Day time of all the Rooms of the Tolbooth the Probation was very contrair as to the breaking of the Stone wherein the Bolt entered but it seemed access could not be had to the Bolt without some breach of the Stone It was also proven the Catband was not then on and that the Bolt when it got the double Cast could not be prest back and could when it got the single Cast and therefore the Lords found that the Magistrates proved not their first Exception that the Rebel had escaped vi majori without their fault or negligence and found the second Exception of puting him again in Prison not Relevant The Lady Halliburtoun contra The Creditors of Halliburtoun Iuly 27. 1670. THe Lady Halliburtoun being provided by her Contract of Marriage to the Mâ—ins of Halliburtoun with the Miln and Pertinents and her Precept of Seizing bearing warrand to Infeft her in the Mains and Miln by Earth and Stone of the Land and by the Clap of the Miln her Seising having the said Precept ingrosâ—ed bears her by vertue thereof to be Infeft by the Earth and Stone of the Land but mentions nothing of any Symbol for the Miln or of any Reason that Seising was not taken of the Milnâ— because it was Demolished the Miln being thereafter Built or Re-edified the Creditors having Apprized did take Infeftment of the Mains by Earth and Stone and of the Miln by Clap and Happer and now in a competition betwixt the Lady and them anent the Rents of the Miln It was alleadged for the Creditors that they ought to be preferred because they were Infeft in the Miln and the Lady was never Infeft therein albeit her Precept of Seising buir an express Warrand to Infeft her therein by Clap and Happer It was answered for the Lady that her infeftment of the Land with the Miln and other Pertinents is anterior to the Creditors and must extend to the Miln albeit she took no special Seising thereof because there was no standing Miln at the time of her Seising so that the Miln being Builded by her Husband thereafter solo cedit and belongs to her as a Pertinent for though where a Miln is before Infeftment it cannot passe as a Pertinent without a special Seising yet where it is only Built thereafter it accresces to any Party Infeft in the Land especially being Infeft in the Land with the Miln thereof The Lords preferred the Lady she proving the Milnâ— the time of her Contract and Infeftment was not at all Built or having been Built was Demolished Charles Charters contra Cornelius Neilson Iuly 29. 1670. CHarles Charters and Cornelius Neilson both having Arrested their Debitors Money in the same hand Cornelius Arrestment was upon the 24. of Iune and Charles Arrestment upon the 28 But Cornelius Arrestment was upon a Bond whereof the Term of payment was not come and the Term of payment of Charles his Bond was come both Parties having their Citation before the Bailzies of Edinburhg in one day where Cornelius alleadged preference because his Arrestment was prior Charles Charters answered that albeit his Arrestment was four days posterior yet it ought to be preferred because the Term of payment of Cornelius Debt was not come whereas Charles his Term being past he has paratam executionem this being ready to be Advised by the Bailzies Cornelius raises Advocation and the Cause being Advocat the same Debate was repeated before the Lords and Cornelius added that now the Term of payment of his Sum was past and alleadged that albeit his Term were not come his first Arrestment is preferable though the Decreet thereupon could only be to pay after the Term were past and now his Term being also past before Sentence there needs no such limitation It was answered that it is not the Arrestment that constitutes the Right but the Sentence making forthcoming and though ordinarly the first Arrestment is preferred yet oftimes posterior Arrestments are preferred upon more timous or more orderly Diligence and the Diligence done by Charters is done more orderly because it was after the Term for if it were Sustained that Arrestments made before the Term of payment should be preferred to these made after the Term Creditors who has ready Execution should be postponed to others whose Debts were payable after a Liferent of 20. years time but as the second Arrester may Poind his Debitors Goods though Arrested formerly by another so may he crave Sentence to make forthcoming to take present effect by Poinding and cannot be excluded by an other Creditor upon pretence of a prior Arrestment which cannot receive present Execution and albeit the prior Arresters Term be now come yet he ought not to be preferred because he procured Advocation of the Cause without any just Reason either of Incompetency or Iniquity only to procure delay till his Term were past and therefore the Cause being now Advocat of consent the Sentence must now be of the same manner as it
permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands whereof he shew a full Progress and alleadged a continual Possession by doing all Deeds of Property that the Subject was capable of and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry such as the Lands in question were and that after the Defenders alleadging on a several Infeftment by the foresaid Seising and so acknowledging these Lands to be separâ—â—â—m tenâ—mentum he could not return to alleadge Part and Pertinent so considerable a tract of Ground six or seven Miles long yet the Lords would prefer neither Party to the probation but before answer ordained either Party to adduce Witnesses anent their Possession and the several specialities by them alleadged that by the probation the Lords might see the just Interest of either Party which might resolve into a promiscuous Commonty or into a Property to the one and a Pasturage or other Servitude to the other Marion Dods contra Lawrence Scot. Feb. 16. 1671. BY Contract of Marriage betwixt Iames Scot and Marion Dods Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass and the said Iames is obliged to imploy the same to him and her in Conjunct Fee and to the Heirs of the Marriage which failzing to her Heirs and Iames having Died without Children the said Marion pursues Lawrence Scot as his Heir to imploy the Sum conform to the said obligement who alleadged Absolvitor because the Pursuer has yet the Tocher in her own hand unless she can show a Discharge It was answered First That the Parties having lived together 22. years it must be presumed that the Husband was payed and had the Custody of the Discharge 2dly The Husband by his Testament acknowledges that the Sum was payed It was answered that this written Obligation cannot be taken away by such a presumption and the Assertion of the Defunct in the Testament has been procured by the Wifes importunity in her Husbands weakness and however cannot prejudge the Heir and can import no more then as legatum liberationis which can only affect the Deads-part of the free Geir The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher against all Parties having interest William Gordon contra Sir Alexander Mcculloch of Ardual February 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines by allienation of the Major part thereof pursues a Declarator of the Recognition against Sir Alexander Mcculloch who stands now Infeft therein who alleadged no Process because the Pursuer produces no Charter to show the Lands to hold Waird neither doth he produce the Infeftments Libelled by which the Recognition is alleadged to be procured and if he shall get a Term to prove and so Litiscontestation be made the Defender will either be excluded from his Defenses which he cannot propone or know before he see the Infeftments or otherwise two Litiscontestations may be in the same Cause by admitting of exceptions after the Term and albeit these Infeftments be not the Pursuers own Writs yet he ought to have used an incident upon his Summons to have compelled the Havers to produce the same and so before Litiscontestation the Defender might have proponed his Defense It was answered that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King for the Law presumeth that the King is Superior and that the Lands are Waird unless the Defender offer to prove the contrare As for the Infeftments whereby Recognition is incurred they are not the Pursuers Title but media concludendi which he may produce ad modum probationis The Lords Sustained the Process and assigned a Term to prove the Infeftments Libelled for inferring the Recognition and reserved all the Defenders Defenses after the production thereof in the same manner as if they were now produced Mrs. Katharin Mcgil contra The Viscount of Oxenfoord Eodem die THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator he gives a Bond of Provision to umquhile Mistrisse Mary one of his Daughters in satisfaction of her Portion natural and Bairns part there are yet three Children beside the Heir and the said Mrs. Mary did survive her Father and in the Compt and Reckoning of his Executory the three surviving Children claimed half of the Moveables as the Bairns part It was alleadged for the Viscount the universal Legator that a fourth part of the Bairns part behoved to belong to him which would have belonged to Mrs. Mary because the Bond granted by the Defunct being in satisfaction of Mâ—ries Bairns part her Bairns part must come in place of it and not accresce to the rest of the Bairns but must belong to him as Executor and universal Legator especially this Bond being granted on Death-bed is only effectual as a Legacy whereby the Defunct did burden his own Deeds part which can be no otherways understood then thus that he would make up Maries Portion to ten thousand Pounds her Bairns part being in the first end thereof and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part It was answered that such Bonds of Provision are most ordinar bearing it to be in satisfaction of their Bairns part which has ever been so interpret that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns and it was never heard that the Heir or Executor burdened with such Bonds of Provision did thereupon recur to seek that share of the Bairns part which was satisfied by the Bond of Provision neither is there any odds whether the Provision were by Legacy or Bond for the Reason of recourse being because the Heir or Executor is burdened to satisfie that Bairn and so in either case doth claim the share of that Bairn neither was it ever so understood that Fathers granting such Bonds of Provision did not thereby leave intire the Bairns part to the remanent Bairns The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns and did not belong to the Executor either as a part or in place of any part of the ten thousand pound but the samine did solely burden the Deads part Agnes Dundasse contra The Laird of Ardrosse and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse and their Heirs of 8000. Merks and after his Decease he granted a Bond to the Relict bearing to have borrowed two thousand Merks from her and obliging him to pay
the whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues â—he Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
Cautioner in the Suspension he can only have recourse against him for whom he was Cautioner but not against his Cautioners in the principal Bond for us to them it is all one as if the principal Debitor had payed 2dly Though the Cautioner in the Suspension could have access against the Cautioners in the principal Bond yet all of them being Cautioners for the same Principal they must bear equal burden and so he must allow his own fifth part in the same manner as Cautioners in a Bond of Corroboration bear equal burden with the Cautioners in the principal Bond. The Lords found that the Cautioner in the Suspension had access against the Cautioners in the principal Bond he alwayes deducing his own fifth part Earl of Northesk contra Viscount of Stormond February 28. 1671. THe Earl of Northesk pursues the Viscount of Stormond on this Ground that he having sent 100. pound Sterling to London to the umquhil Viscount of Stormond to be imployed for Houshold Furniture the most part thereof was not imployed and for instructing his Libel produces several missive Letters of the Viscounts one Holograph another having an Holograph Postscript and a third Written with another hand which did state the Accompt and acknowledged the Debt It was alleadged for the Defender that the only Letter which had any special Probation in it was the last which is not Holograph It was answered that the Subject Matter being a Sum sent for Furniture which uses not to be redacted in Writ the Viscounts Letter Subscribed by him though not Holograph is sufficient to prove for Bills of Exchange so Subscribed or Letters among Mâ—â—chants are sufficient and this Letter being amongst Noble Persons in such a small particular which requires not ordinarly Writ must be of the same force especially seing there is also produced two other missives not controverted which comparatione literarum are clearly the same with this Letter in question The Lords found that this Letter though not Holograph was a sufficient Instruction having compared the same with the other not controverted Subscriptions The Pursuer making Faith that this is the same Letter which he received from the Deceast Viscount his Servant or Messenger Steil contra Hay of Rattray Iune 6. 1671. UMquhil Steil having a Feu of some Aikers of the Barony of Rattray Chancellour Hay as Superiour and Baron of the Barony pursued Reduction and Improbation against Steil and other Vassals and in Iuly 1624. obtained Certification the Chancellours Right being Transmitted to Doctor Patrick Hay he accepts of the Feu-duty and gives a Discharge of the year 1624. and thereafter in Anno 1628. having obtained Decreet of Removing against Steils Relict he by a Transaction with her passes from it and gives her other Lands in lieu thereof but without any mention of the Improbation Steils Heir attains Possession of the saids Aikers of Land and Hay of Rattray as now having Right to the Barony pursues a Removing against Steils Tennent and obtains Decreet of Removing without Calling Steil whereupon Steil pursues Ejection and Intrusion against Hay of Rattray wherein in respect that Rattrays interest was by a Sentence though unwarrantably given without Calling the Tenuents Master The Lords restricted the Letters to Re-possession and ordinar profits wherein it was alleadged for Rattry Absolvitor because the Defenders Author having obtained Certification in the Improbation at Chancellour Hays Instance produces the same which did evacuate the Pursuers Fathers and Predecessours Right The Pursuer Replyed First That the Decreet of Certification produced was not Relevant because it was not a Certification in an Improbation which was not concluded by the Summons as they are exprest in the Decreet which bear That the Writs called for should be cancelled and declared null but bears not that the same should make no Faith or should be declared as False Forged or Feinzied 2dly Doctor Hay the Defenders Author by accepting of the Feu-duty for a Term after the Decreet did pass therefrom and did acknowledge and Homologate the Pursuers Right and did acknowledge the Liferenters Right by Excambion therewith The Defender answered that he opponed his Decreet of Certification the Decernator whereof is expresly in the Terms of an Improbation And likewise the beginning of the Libel being both at the Chancellour and Kings Advocats Instance and at the Compearance the Pursuer insisted for improving the Writs called for so that the Repetition of the Conclusion of the Libel hath been only through Inadvertence not fully set down And as to the Discharge of the Feu-duty First It is Vitiat in the Date 2dly It wants Writer and Witnesses and albeit it were Holograph it cannot instruct the true Date and it can never import a passing from the Improbation further then for the Term Discharged especially seing it was granted by Doctor Hay who was singular Successor to the Chancellour and perhaps knew not of the Improbation The Pursuer answered that the Certification being granted in absence the Obtainer thereof might frame it as he pleased but it cannot be supposed to be truly better then as it stands and though Improbations being in absence are very much adhered to yet they are odious Rights and very Reduceable upon any Defect or Informality seing it is formality that gives them all their strength And as to the Discharge the Date of it hath been altered at the Subscription by the Subscribers hand as appears by comparing the Date and Subscription 2dly In the very Body of the Discharge no ways altered it bears to Discharge the year 1624. after the Certification and the Discharge as it stands is in the ordinar way as Discharges uses to be given to Tennents and Vassals for small Feu-duties and therefore must be sufficient in a case so favourable for the Pursuer who has a clear Right and should not be eleided by this dubious Certification which must be restricted to a Certification in a Reduction which is only Reducing the Rights till they be produced and so falls they being now produced The Lords Repelled the Defense upon the Certification in respect of the Reply and Discharge produced and Decerned the Defender to Re-possesse the Pursuer but Assoylzied him from the bygone Profits seing he Possest by a Title and had just Reason to Defend in a matter so dubious Sir William Stuart of Kirkhil contra Sir George Mckenzie and Kettlestoun Iune 8. 1671. SIr William Stuart as Heir by progress to Sir Lewis Stuart his Goodsire pursues Improbation of a Bond bearing to be granted to Mr. Iohn Stuart of Kettlestoun his Son granting an Annuity of 3000. merks yearly during his life and some other Provisions Which Bond is Assigned by Keitlestoun to Sir George Mckenzie and being produced Kettlestoun has abidden by the same and has declared upon Oath that he was not present when it was Subscribed but that he received it from his Father as now it is one of the Witnesses insert being then Kettlestouns Servant depon'd that the Subscription to
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
of a thousand merks whereanent it being Debated anent the manner of Probation and Witnesses ex officio being craved for clearing the Trust by the Writer Witnesses and Communers The Lords refused to Sustain the same till first they considered the other Reason of Circumvention which was Libelled thus That the Disponer was a lavish weak person that the Disposition was elicite by his own Good-brother for a thousand merks only and that he keeped him privatly from the access of all other Friends and drank him drunk in which condition he was when the Disposition was Subscribed and that it was not Read unto him and it being excepted upon a Ratification some Weeks after at another place and the Reason of Circumvention repeated on the same Terms against that Ratification The Lords ordained Witnesses to be Examined ex officio upon the Reason of Circumvention as to both and specially whether these Writs were Read at the Subscribing and whether the Subscriber was Drunk and whether he was thereby insensible or disordered in his Reason or what were the Motives induced him to Subscribe Sir George Maxwel contra Maxwel of Kirkonnel Eodem die SIr George Maxwel of Nether Pollock pursues Maxwel of Kirkonnel for payment of a Debt of his Fathers as behaving himself as Heir by intromission with the Mails and Duties of his Fathers Lands of Kirkonnel The Defender alleadged Absolvitor because his Father was Denuded and an Appryzer Infeft and so could have no Heir in these Lands It was Replyed that notwithstanding of the Appryzing the same remained Redeemable and the Defunct remained in Possession and the Defender his appearand heir did continue his Possession and so has behaved as Heir and though he had had a Right or Warrand from the Appryzer yet during the Legal it is immistio having no other Cause nor Title It must be presumed to be granted to him as appearand Heir much more where he hath no Warrand from the Appryzers 2dly It is offered to be proven the Appryzers were satisfied by intromission and what is wanting the Pursuer offers to satisfie the same at the Bar for by the Act of Parliament 1661. betwixt Debitor and Creditor Appryzings acquired by appearand Heirs may be satisfied by the Defuncts Creditors for the sums they truly payed out by the space of ten years So that the Defender ought to condescend and Depone what he gave out and to count for his Intromission and what is wanting the Pursuer will pay The Defender answered that behaving as Heir being an odious universal passive Title any colourable Ground is sufficient to restrict it to the value intrometted with And as to the offer to satisfie the Defender of the Appryzing to which he has Right It is not competent hoc ordine for by the Act it is only introduced in favours of other Appryzers and the Pursuer is a meer personal Creditor without any Appryzing It was answered that the Narrative of that part of the Act bears it expresly to be in favours of Creditors and though the subsumption is only applyed to Appryzers yet it is not exclusive and by the common Custom satisfaction of Appryzings by intromission or present payment is ever received by Exception or Reply The Lords found that behaving as Heir is sufficiently elided by any Right or Warrand from the Appryzers as to intromission thereafter or that if the Defunct died not in Possession But that the Appryzers had then or thereafter attained Possession before the intromission But found that the appearand Heirs continuing in the Defuncts Possession without a Warrand did infer behaviour and that the offer to purge the Appryzing at the Bar was competent hoc ordine without burdening the Creditors with the Expenses of Appryzing to make the appearand Heir lyable for what he intrometted with and that the appearand Heir should assign the Appryzing whereupon the Creditor might continue Possession till he were satisfied of the sums now payed out Robert Lermont contra The Earl of Lauderdail Iuly 12. 1671. SIr Alexander Swintoun having Disponed his Estate of Swintoun to Iohn Swintoun his Son in his Contract of Marriage there is a Clause therein on thir Terms that it shall be leisom to the said Sir Alexander to affect and burden the Estate with Infeftments of Wodset or Annualrent for the sum of fifty four thousand merks for his Creditors and Bairns thereafter Sir Alexander grants a Bond of 1400. merks to the Laird of Smeatoun and declares it to be a part of the fifty four thousand merks whereof 2000. merks being now in the Person of Robert Lermont He pursues the Earl of Lauderdail as now come in the place of Iohn Swintoun by his Foresaulture to pay the sums or at least that the Lands is or may be burdened therewith because the Forefault Persons Infeftment being qualified with the said Reservation it is a real Burden affecting the Estate and Swintouns Infeftment being publick and thus qualified and burdened was as to this point the Creditors Infeftment and his being Forefault could not prejudge the Creditors as to this real Burden in a publick Infeftment granted by the King The Defender alleadged that the Libel was not Relevant for the Reservation being a meer Power of Burdening by Infeftment it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore But seing Swintoun made no use of that power albeit it might have been sufficient against Swintoun the Contracter or his Heirs It cannot militate against the King or his Donator to whom the Fee returns by Forefaulture without any Burden but what the King has consented to by publick Infeftments or Confirmations And though old Swintoun had given the Pursuer a base Infeftment it would have fallen by the Forefaulture not having been Confirmed much more when there is no Infeftment The Lords found the Libel not Relevant and Assoilzied The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others Eodem die THe Estate of Sir Iames Keith of Powburn being Appryzed by several of his Creditors they now compet for preference Mr. Thomas Lundie who led the first Appryzing was more then year and day before the rest and thereupon his Heir craved preference It was alleaged the Apprizing was null First Because it proceeded upon a Bond carrying a Clause of Requisition and the Claim of the Appryzing did not Libel thereupon so that albeit it be now produced and done debito tempore Yet the Claim was not sufficiently instructed without it 2dly The Messenger did unwarrantably continue the Court of Appryzing till another Dyet without any necessar Cause which was never accustomed before and is of very evil consequence for thereby Messengers at their pleasure may continue and weary out the Persons concerned who might propone Defenses or produce Suspensions and are not obliged to attend the pleasure of the Messenger 3dly The Appryzing was at the Beitch-hill of Cowper which is not within the Shire where the Lands ly And albeit there be a Dispensation
Pursuer and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to
formal and solemn according to the custom then in uâ—e the posterior being upon Denunciation at the Mercat Croâ—s of the Sheriffdom and the other at the Mercat Cross of the Regality when Regalities were supprest by the Vsurpers and was led at Glasgow Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyâ— of Pitcon An Apprizer was â—ound comptable for the whole Rents of the Lands he possest by his Apprizing both for his Ommission and Intromission and that not only till his Apprizing was satisfied but for all years subsequent that he continued to intromet with any part Ianuary 26. 1671. Cass contra Cunninghame An Apprizing coming in the person of the apparent Heir of the principal Debitor was â—ound extinct by satisfaction of the â—ums payed by the apparent Heir therefore summarly without Reduction not only as to the Estate of the apparent Heir but as to the Estate of a Cautioner â—or that Debt which was also Apprized February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester although there was no Diligence upon the Apprizing for nine years before the Arrestment and that there was no Infeftment or lawful Charge on the Apprâ—zing in respect it was a prior judicial Assignation requiring no Intimation February 23. 1671. Lord Iustice Clerk contra Fairholme Apprizings deduced since Ianuary 1652. within year and day of the first effectual Apprizing were found not to be compted by a year from the Infeftment or Charge by which the Apprizing becomes effectual but from the date of the first effectual Decreet of Apprizing by the Act 1661. betwixt Debitor and Creditor Which bears That all such Apprizings shall be as if one Apprizing had been led for the whole Iuly 4. 1671. Laird of Balfoure contra Dowglas An Apprizing was found satisfiable by Exception or Reply as being to the behove of the Debitor or his eldest Son for the sums that were truly payed out by the Act of Parliament 1671. Albeit the Apprizing was Expyâ—ed Ibidem An Apprizing was Sustained though it proceeded on a Bond payable upon Requâ—sition and that the Claim of the Apprizing did make mention of the Requâ—sition seing the Requisition was done and is now produced and though the Messenger having met at the dyet appointed for the Apprizing did adjourn the Court of Apprizing till the next day in respect of a great Rain and that the place designed for the Apprizing was upon the open Field and though the place of the Apprizing was by diâ—pensation neither at Edinburgh nor at the Head Burgh of the Shire and past as a common Bill of course Iuly 12. 1671. Heirs of Lundy contra the Earl of Southesk and others In Apprizings Messengers are prohibite by Act of Sederunt to continue the dyer of Apprizings except upon absolute necessity that Parties interressed be not put to uncertain attendance and likewise diâ—penâ—ations for the place of Apprizings is prohibite to be past of course amongst other common Bills without being Read Ibidem An Apprizing acquired by the appearand Heir of the Debitor was found satisfiable by any other of the Defuncts Creditors by paying what the appearand Heir truly payed therefore albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seing his Infeftment by which the Right real is Established in his Person and his Author was Denuded was after the said Act and albeit the Apprizing was not expired when the appearand Heir acquired Right but that it became to expire continuing in his Person and that it was Redeemable within ten years from the date of the acquiring but not from the expiring of the Legal Iâ—ne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel An Apprizer was found not obliged to restrict his Possession to his Annualrent in favours of posterior Apprizers by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debitor but seing the first Apprizer would not admit the posterior Apprizers to possess he should be comptable for the whole Rental from the time of the Exclusion Iuly 28. 1671. Murray contra Earl of Southesk and others ARBITERS got Warrand on a Supplication to Cite Witnesses before them Ianuary 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants ARRESTMENT was not elided because the sum arrested was discharged before the arrestment seing it appears the Discharge was not delivered to the Party in whose hands the arrestment was made nor none to his use before the arrestment December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun An Arrester and an Assigney competing the Assigney was preferred because the Arrestment was loosed albeit the sum Arrested remained still in the same hands because the Arrestment was on a dependence and no Decreet thereupon against the principal Debitor Iuly 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady VVolmet Arrestment cannot be loosed without Caution super cautione juratoria Iuly 16. 1661. Colledge of St Andrews Supplicant Arrestment was found not to affect the Sallaries of the Lords and the Kings Pensions conform to a Letter and Act of Sederunt February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day was found null by Exception February 3. 1663. Oliphant contra Dowglas of Dorâ—och Arresters Competing the second being on Letters of Supplement against a Party ouâ— of the Countrey was preferred to the first being at his Dwelling Place without Supplement Ianuary 20. 1665. Lord Lowre contra Givon Arrestment on a Bond not Registrate was found looseable as not being on a Dâ—â—reet of Registration or any other and after the loosing the Arrester was found preferable to a posterior Assigney seing the Money was yet in his Hand in whose it was Arrested February 7. 1665. Grahame contra Brown and Doctor Martine Arrestment being laid on in the hands of a Party who Entred in a Minute or Bargain of Land though he passed therefrom yet the price was ordained to be made forth-coming November 23. 1665. Campbel contra Doctor Beatoun Arresters having both obtained Decreet in one day were found not to come in equally but the first Arrester was preferred have done equal diligence February 1. 1666. Collonel Cunninghame contra Lyel An Arrester and Comprizer Competing for a Sâ—m whereupon Apprizing was led at the Instance of the common debitor whereupon no Infeftment followed yet the Arrestment upon the said first Apprizers debt was not â—ound habilis modus to make forthcoming the Sum Appryzed for but the second Appryzer was preferred to the Arrester February 22. 1666. Lockhart contra Lord Bargenzie An Arrestment was found to give Action after the death of the debitor whose Goods were Arrested without a new Decreet against any Repreâ—enting him seing he died at the Horn and so could have none to Represent him in mobilibus February 19. 1667. Givon contra Hume here the Defuncts Donator to his Escheat concurred An Arrestment of Annualrents laid on currâ—nte termiâ—â— was
Heir to his Father by Intromission with the Mails and Duties of the Lands wherein his Father dyed Infeft as of Fee for payment of a Debt of his Fathers who alleadged absolvitor because any Intromission he had was by a Warrand and tollerance of Sir George Kinnaird who stood Infeft in the Lands upon a Gift of Recognition It was answered non relevat unless the Gift had been Declared before the Defenders Intromission because the Gift would not have given Right to the Donatar himself to possess The Defender answered that the Gift was Declared before the Intention of the Pursuers cause which Declarator albeit after Intromission yet must be drawn back to the Gift to purge the vitiosity of the Defenders Intromission in the same way that the Confirmation of a Testament will purge anterior vitious intromission the Confirmation being before the intenting of the Cause The Lords found the Defense relevant to elid the passive Title seing any colourable Title is sufficient to excuse the vitiosity but did not find that the Declarator before intenting the Cause had the same Effect as a Confirmation because by constant Customs such confirmations purge the preceeding vitiosity which has never yet been found in this Case of an Heirs intromission with the Rents of Lands but the Lords found the Defender lyable for the single value of his Intromission Alexander Burnet contra Iohnstouns Eodem die JOhn Iohnstoun having disponed the Lands of Fraster-hill to Gordoun of Lesmore whose Right Alexander Burnet having appryzed and by the appryzing having Right to the Clause of Warrandice contained in the Disposition charges Iohnstoun the Disponer to warrand the Right against a posterior Right granted by him to William Iohnstoun who had obtained first Infeftment It was answered that the Warrandice could have no effect because there neither was nor could be a distress in so far as in William Iohnstouns Disposition Iohn Iohnstouns and his Wifes Liferent were reserved during whose life he could never distresse Burnet 2ly It was Burnets authors fault that for many years he did not take Infeftment having long Right before the second Disposition It was answered that Iohnstoun himself could never object this delay to excuse his fraudulent Deed of granting double Dispositions whereby Parties become infamous by the Act of Parliament 1540. cap. 105. and unto the other point albeit there was no present distress yet there was unquestionable ground of a future distress against which the Defender could answer nothing that could elid it and who being but a naked Liferenter if no execution should pass upon the Clause of Warrandice during his Lifetime he would be fully frustrat The Lords decerned Johnstoun the Disponer to purge the posterior Disposition granted by him and found neither of the alleadgeances in the contrair relevant Brown and Duff contra Bizet July 18. 1666. BRown and Duff having obtained Decreet against Bizet for a Sum due to Umquhil Andrew Duff Merchant in Polland Bizet raises Suspension and Reduction upon this Reason that this Sum having been in bonis defuncti the Charger could have no Right thereto till it were established in their Persons by a Confirmation in Scotland by the Commissaries of Edinburgh ut in communi patria It was answered moveables sequuntur personam and therefore wheresoever the moveables be they are regulat according to the Law of the place where the Defunct resides and it is instructed by the Testimony of the Consul and Counsel civitatis Regiae pusensis that by the Common Law and Law of that place moveables belonged to the Wife and Bairns and the Pursuers were so cognosced by them declaring the said Clares Brown Wife and the said Duff the only Daughter of Andrew Duff and therefore they have sufficient Right without Confirmation in Scotland which appears by the Act of Parliament James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do and that it was so decyded the 16. of Feb. 1627. Lauson contra Bastil Kello It was answered that it was otherwayes decided in the Case of Rob contra French 25. Feb. 1637. And there was no reason that these that lived out of the Country animo remanendi should be in better condition then these that resided in the same and behoved to Confirm and to pay the Quot The Lords found that the Testament behoved to be Confirmed by the Commissars of Edinburgh for having considered the old Act of Parliament they found that the poynt there ordered was to what Judicatures the Merchants going abroad to Trade should be lyable and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their Testament would be confirmed viz. where they had their Domicills but these that went out of the Country to remain are excepted but nothing exprest where their Testament should be Confirmed and for the Decision the Point in question was not whether a Confirmation in England was valid but whether a Confirmation without an Inventar was valid and therefore seing nothing was objected against the Confirmation it self The Lords did justly find that the wanting of an Inventar in an English Confirmation where that was the custome did not prejudge it neither is the Case determined by the Decision betwixt Rob and French in respect that the Executor having Confirmed in England and rather being Confirmed by the Legatars would not own the Confirmation but renunced the same and therefore the Lords found no Consuetude or Decision in the Case but determined the same ex bono aequo Hellen Millar contra Watson Iuly 21. 1666. WAtson having obtained a Decreet before the Lords against Hellen Millar for the Rent of some Tenements in Glasgow she Suspends and raises Reduction on these Reasons First That the Decreet was null as being ultra petita in so far as the half of the Duties was only lybelled and the whole was decerned 2dly That Watson's Right was as Heir to Watson who was first Wife to Brown who stante matrimonio acquired this Right to him and her and the one half to her Heirs and the other to his which was a Donation betwixt Man and Wife revocable and revocked by the Infeftment granted to Hellen Millar in Liferent his second Wife It was answered that the Decreet being in foro contradictorio was irreduceable 2dly That the Right was not granted by the Husband to the Wife but acquired from a third Partie The Lords reduced the Decreet finding that it was visibly Extracted by error of the Clerks being ultra petita and therefore sustained the second Reason albeit it was omitted that it was a Donation betwixt Man and Wife being acquired to the Man and Wife and so presumed to be by his means which is equivalent as if he had been Author unless that Watson could condescend that it was by the Wifes means Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh Eodem die GAvin Hamiltoun as Assigney by the Collector of vaccand Stipends