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
was alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ— and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
they searched for him immediatly after The Lords Repelled both Defenses seing the Escape was in day light during which the Towns Officer should Guard the Prison Elizabeth Nisbet Lady contra Murray Eodem die ELizabeth Nisbit pursues a Poinding of the Ground of certain Lands wherein she was Infeft by Iames Wood her Husband Compearance is made for Patrick Murray who alleadged that he is Infeft by her Husband his Debitor in the same Lands and ought to be preferred It is answered for the Lady that she ought to be preferred because both their Annualrents being base albeit her Infeftment be posterior Yet her Husbands Possession being her Possession and she being Infeft before Patrick Murray's Infeftment was cled with Possession must be preferred It was answered for Patrick Murray First That a Husbands Possession should be the Wifes Possession cannot be understood in an Annualrent because her Husband never Possessed an Annualrent but the Property This the Lords Repelled and found the Possession of the Property as jus nobilius to contain the Annualrents eminenter 2ly Patrick Murray alleadged that the Husbands Possession being the Wifes is only introduced in favours of Contracts of Marriage favore dotis That because Wives cannot Possess during their Husbands life therefore his Possession is accompâ—ed theirs But this Infeftment in question is not founded upon the Contract of Marriage but upon a posterior Charter of a different Tenor. 3ly Patrick Murray used citation before Câ—ndâ—esmess next after the Ladys Infeftment and thereupon obtained Decreet in March which must be drawn back to the Citation So that the Husband could have no Possession betwixt the Ladys Charter and his Diligence there being no interveening Term. It was answered for the Lady that this Priviledge is allowed to Wifes that their Husbands Possession is theirs during their Marriage favore datis which may be without a Contract 2ly The Husband being in present current Possession from the very Date of the Wifes Seasine his Possession is sufficient to validate hers The Lords found the Ladyes Infeftment to be first validat by Possession It was further alleadged by Patrick Murrayâ— that this Infeftment was donatio inter virum uxorem not being founded on the Contract of Marriage which was satisfied before at least it is to the prejudice of him a lawful Creditor who was Infeft before the Lady and therefore seeing the Ladys Infeftment is so free and lucrative both parties being now Disputing the Possession and power therein The Ladys Infeftment cannot prejudge him That the Contract of Marriage was satisfied he condescends thus that the Husband was oblieged to Infeft his Wife in certain Lands and to make them worth 18. Chalders of Victual or otherwise at her option to Infeft her in an Annualrent ita est she made her option and was Infeft in the Property after which she cannot return to this Annualrent in question It was answered for the Lady that the Clause being conceived in her option must be Interpret her option not to receive the Infeftment but to enjoy either of the two she pleased First A Seasine cannot import her choise which might have been given by her Husband without her knowledge upon the Preccept contained in the Contract of Marriage unless it were instructed that she did accept the same by a Seasine propriis manibus or otherwise and that her Infeftment was a valid effectual Infeftment 3ly Albeit that Article of the Contract of Marriage were satisfied by taking her choise yet she being thereafter Infeft upon her Charter produced in her Liferent Lands and in the Annualrent in Warrandice thereof or with power to her to make use of the Annualrent it self principaliter at her option albeit her choice once made will exclude her from the annualrent principaliter yet not in so far as she is Infeft therein to warrand and make up the principal Lands which can be accounted no Donation nor Deed in prejudice of a Creditor because it doth but make real and effectual the personal obliegement of warrandiceâ— contained in the Contract It was answered for Patrick Murray that this alleadgance non competent hoc loco but he must only poind the Ground until the Lady obtain a Declarator of what is defective of her Liserent Lands but cannot come in by way of Reply The Lords found that the Ladys acceptance of the Liferent Infeftment satisfied the obliegement in the Contract of Marriage and did not sustain the posterior Charter to give her any further choice but sustained the Right of annualrent constitute therein in warrandice of the Liferent Lands hoc loco and ordained the Lady to condescend upon the several Rooms what they payed and what was wanting that she might be preferred in the first place and Patrick Murray in the second place Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange Eodem die ALexander Livingstoun as Assigney by Mistriss Margaret Forrester and Sornbeg her Husband to some Debts owing to her by her Father The umquhil Lord Forrester having Charged the remnant Daughters and Heirs of Line craves Adjudication of the Estate of Forrester and Barony of Grange wherein the Lord Forrester Died Infeft Compearance is made for a Creditor of Grange who produces a Back Bond granted by the Lord Forrester to the Laird of Grange bearing that the Infeftment was in trust to the use and behove of the Laird of Grange and only to the Lord Forresters behove for Relief of Debts he should be ingaged in for Grangeâ— and alleadged that he being Granges Creditor and now insisting against Grange who has renunced to be Heir for Adjudging of the Estate of Grange for Granges own Debt he has good Interest in this Process to alleadge no Adjudication of Grange Estate because it is only in Trust except in so far as may be extended to my Lord Forresters Relief and if the Pursuer condescend upon any Distress or Ingagement he will instantly relieve the same The Pursuer answered that he being now in an anterior Diligence to this Party ought not to be stopped in his Diligence but must be admitted to Adjudge from the Lord Forresters Heirs whatever was in his Person And the other Party may also proceed according to his Diligence to Adjudge the Back Bond and when he pursues thereupon he shall have an answer 2ly There is no reason to stop the Adjudication and to force the Pursuer to condescend upon my Lord Forrestersâ— Debts or Interest because a Creditor cannot possibly know them and therefore Adjudications are always granted generally of all Right the Debitor had and is the only ground upon which the Adjudger can pursue the havers of the Debitors Rights to Exhibit and Deliver them and thereupon to found Processes and Condescendences but cannot be urged to condescend before he obtain Adjdication and also insinuat that he would take his Adjudication with the burden of the Back Bond But some of his Advocats resiled therefrom The Lords having considered the Case
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
The Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants
exclude Reductions and Declarators against appearand Heirs not requiring a Charge to Enter Heir in respect the appearand Heir must therein except upon the Defuncts Rights and so behave as Heir Iune 27 1667. Dewar contra Paterson Annus deliberandi Excludeth Citations given within that year here the day of compearance was within the year Ibidem ANNVALRENT was not found due for sums of Money without paction albeit the Money was lent with this provision that failing Heirs of the Creditors body who was very old the Debitor should succeed December 11. 1662. Logiâ— contra Logiâ— Annualrent was found due after Horning albeit the Decreet being Susâ—ended a part of it was taken away yet Annual was found due for the rest Ianuary 30. 1663. Rigg of Carberry contra his Creditors Annualrent was allowed without paction for a Portâ—on left by Legacy to the Defuncts natural Daughter the time of payment of which Legacy was her Marriage which being in her power The Lords would give no occasion to hasten the same but allowed Annualrent in the mean time Iune 25. 1664. Inglis contra Inglis Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mothers Father and uplifted by the Father during the time he alimented his Son in his Family December 15. 1668. Windrham contra Eleis Annualrent promised for a time by a Letter was found due in all time thereafter Ianuary 13. 1669. Hume contra Seaton of Menzies Annual of Annual was not found due though expresly obliged to be payed by a Bond beaâ—ing That after each Term the Annualrent if it were not payed should bear Annualrent with the principal which clause was found null and not in the same case with a Bond of Corroboration granted after Annualrents were due accumulating the same Ianuary 26. 1669. Lady Braid contra Eâ—rl of Kingâ—orn APPRYZINGS were found not to be affected by a Bond or a Contract amongst the Appyzers to concur and communicat their Rights as to singular Successors seing the Contracters were then Infeft Iuly 1661. Taâ—lziâ—er contra Maxtoun An Apprizing led before the year 165â— but no Infeftment thereon till after that year was found not to come in pari passu with posterior Apprizings Infeft or Charging after the Charge or Infeftment on the Appryzing before 1652. but it did exclude them wholly December 12. 1666. Sir Henry Hume contra Creditors of Kello An Apprizer was found Comptable â—or his Intromission with such as he Entered in Possession of according to the Rental the Lands gave at his Entry with power to him to give up all defalcations in his Discharge and instruct the same Ianuary 4. 1662. Seaton contra Rosewall An Apprizer was excluded by a prior Infeftment though granted to the Creditors appearand Heir whereby he became Lucrative Successor after this Debt contracted but prejudice to purâ—ue him personally or to Reduce on that Title Ianuary 6. 1662. Mansoun contra Bannerman of Elsick An Apprizer pursuing for Removing and Mails and Duties his pursuit was Sustained only as â—o so much of the Apprized Lands as he should choose worth 8. per cent and to compt for the superplus more than his Annualrent and publict burdens excepting the Defenders House and Mains by the late Act of Parliament betwixt Debitor and Creditor Iune 27. 1662. Wilson contra Murray Apprizers Competing upon the late Act of Parliament bringing in Apprizings since 1652. pari passu was found not to exclude Apprizings before having obtained Infeftment since but that none could come in with him who was first Infeft and payed the Composition till they refounded their shares thereof Ianuary 24. 1663. Graham contra Ross. But also by the Tenor of the late Act the first Apprizers being Infeft in an Annualrent were found to have access to his Annualrent thogh there was no poinding of the ground February 5. 1663. Inter â—osdem An Apprizer was found comptable for the Rents of the apprized Lands during the Debiâ—ors Minority contrary the Act of Parliament 1621. Which was â—mended in the late Act 1641. But in the late Act Rescâ—ssory that was not Revived seing all private Rights by these Rescinded Acts. mâ—dio tempore were Reserved and this had been the Custom for twenty years February 18. 1663. Rosse contra Mckenzie Apprizers Competing the first Apprizer having given the first Charge on the Letters of â—our Forms and before the dayes thereof were expired the Superiour Infefting a second Apprizer the Infeftment was found Collusive and the first Apprizer giving the â—irst Charge and Infeft within a litle time after the second was preferred and the first Infeftment Reduced was still in Possession till now that the Legal was expired not only the bygone Fruits were his own but that he might Redeem within a year after this Sentence seing by the Taciâ—urnity of the Pursuer he was in bona fide to continue his Possession and not to doubt his own Right or Redeem a second Apprizer December 3. 1664. Laird of Clâ—rkingtoun contra Laird of Corsbie An Apprizing within a year was excluded from coming in pari passu with a prior Apprizing in respect the prior Apprizer had before the Act betwixt Debitor and Creditor taken Right to a prior Apprizing without necessity to alleadge that he took the Right to shun the expiring of the Legal of that prior Apprizing or any other necessary Causâ— December 9. 1664. Iohn Veatch younger of Dawick contra Alexander Williamson Apprizers Competing where the first Apprizer being Infeft would possess but a part the Debate being as to the rest betwixt the second Apprizer not Infeâ—t and the third Infeft the Lords preferred the second as needing no Infeftment December 22. 1664. Doctor Ramsay and Hay contra Seatoun Apprizers come in pari passu not before the date of the late Act but from that time both Parties Sums should be accumulate and the Mails liâ—ted proportâ—onally but prâ—ceeding Mails should be imputed in payment of the Expence of the Apprizing Composition to the Superiour and then in payment of the principal Sums Ianuary 7. 1665. Grahame of Blackwood contra Browâ—s An Appriâ—ing being to be led the present Hâ—ritor and Possessors obtained assessors to be joyned to the Messenger that he might stop the Apprizing by production of his Inâ—eâ—tment â—ebruary 3. 1665. Sir Iohn Fletcher Supplicant An Apprizing ordained to be allowed and Registrat after the Debitors death and long after the sixty dayes were past from the Date of the Apprizing and that upon Supplication without Citation in respect it was found that the Apprizing Registrate Quandocuâ—que would be preferred to others not sooner or more orderly Registrate Iune â— 1665. An Apprizer pursuing for Mails and Duties was excluded till he â—atisfied the Superiour for a years Rent he being now ready to Recâ—ive him albeit he â—as Charged before and did not obey Iuly 22. 1665. Iohnstoun contra Tennents of Auchincorse An Apprizing being lost and a new Extract thereof being Subâ—cribed by the Clerk of
the general Registers of Hornings and Inhibitions and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time and found that during the said time there were no Hornings Booked for the space of five years and three moneths or thereby and that no Inhibition were Booked for the space of three years and six moneths and that they had called the Persons who were intrusted in that time as Clerks to and Keepers of the saids Registers of Hornings and Inhibitions and where they were dead they called and heard their Representatives but that one of these who had the Keeping of the saids Registers from the 5. of Iune 1652. to the 8. of September 1654. Called Thomas Freeman being deceased there can be none found to represent him which being taken in consideration by the Lords they Ordain the Hornings and Inhibitions to be Booked for the saids years by such Persons as the Lord Register shall appoint and allows them for their pains three shillings four pennies for ilk Leaf of the Book Written in such manner as the Lord Register shall appoint And the Lords Ordain the same to be payed by the Persons who enjoyed and possest the said Offices and were oblieged to have Booked the same or their Representatives And where they have none to Represent them by the Person who succeeded next in the said Office and his Representatives And Ordain Letters of Horning to be direct upon six dayes to the effect foresaid Orders for payment of the Dues of the Signet where Suspensions are appointed to be discussed upon the Bill Ianuary 24. 1679. THE Lords considering that they do frequently grant Warrands to the Ordinary upon the Bills to Discuss the Reasons of Suspension upon the Bill especially where the Charger desires the same And seeing that Warrand or Deliverance hath the effect of a Suspension past the Signet the Party ingiver of the Bill of Suspension being thereby secured against any further Personal Execution untill the Reasons of Suspension be Discussed It is just and reasonable in this Case that the Dues payable for affixing the Signet should be satisfied as if the Suspension had been past and exped Therefore the saids Lords do Ordain that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills in order to the Discussing thereof there be payed in to the Clerk of the Bills or his Servant in that Office the Dues payable for affixing the Signet to the Suspension for which they are to be comptable to the Keeper of the Signet under the Lord Secretary and to make payment thereof as he shall call for the same And appoint the Clerk of the Bills and his Servants to keep a Note of such Bills of Suspension whereof the Reasons are ordained to be be Discussed on the Bills to the effect foresaid ACT in Favours of Intrant Advocats February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn Son to Mr. Alexander Nairn of Greenyards mentioning That the Petitioner upon a Reference of the Lords to the Dean of Faculty and the Advocats Examinators for taking Tryal of his Qualifications in order to his Admission to the Office of an Advocat having undergone both the privat and publick Tryal and Examination and thereafter applyed to the Dean of Faculty to assign him the Subject of his publick Lesson before the Lords the same is refused until the Petitioner make payment to the Advocats Box of 500. merks Scots conform to a late Act of the Faculty made to that purpose And the Lords considering that the Office and Imployment of Advocats being a liberal profession albeit they will not allow any sums of money to be imposed upon young men at their Entry to the Office and Station of Advocats yet they recommend to them to Contribute Voluntarly for a Library to be erected for the use of the Colledge of Justice ACT anent Executors Creditors November 14. 1679. THE Lords considering that it is imcumbent to all Executors by vertue of their Office to execute the Testament of the Defunctâ— by recovering his Goods and payment of the Debts owing to him for the behove and interest of the Relict Children or nearest of Kin Creditors and Legatars of the Defunct Therefore the saids Lords do Declare that Executors decerned and Confirmed as Creditors to the Defunct are holden as lyable to do Diligence for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament or â—iked sicklike as other Executors Dative are holden to do by the Law and practick of this Kingdom And to the effect that Creditors be not unnecessarly intangled in the Execution of Defuncts Debts beyond their own satisfaction The Lords Declare that Executors Creditors shall not be oblieged to make a total Confirmation but only of so much as they shall think fit that there may be place for an Executor ad ommissa for the rest who shall be lyable to all Parties having Interest in the same way as principal Executors It is also Declared that Executors Creditors shall have license to pursue if they will make Faith that they are doubtful of the Validity Existence or Probation of the Debts of the Defunct for which they desire license the same being returned to the Commissars within such competent time as they shall appoint and upon Caution to Confirm as hath been granted in the Case of Licenses formerly ACT anent the Registration of Hornings November 19. 1679. FOrasmuch as all Letters of Horning are to be Registrate either in the Registers of the Shire where the Denounced Person dwells or in the general Register of Hornings keeped at Edinburgh and the Sheriffs Clerks and Keepers of these Registers in the Shires are by special Act of Parliament appointed to bring in those Registers to be marked by the Clerk of Register and when they mark the Registration of any Horning upon the Letters they should also insert therein the number of the leaves of the Register wherein the same is Registrate Which Order is renewed by Act of Regulation in Anno 1672. And the due observance hereof being of great Importance for the Benefite and Security of the Leidges Therefore the Lords do accordingly Ordain all Sheriff Clerks to bring in their Registers of Horning to be marked by the Clerk of Register and that in every Horning to be Registrate by them they insert at the marking thereof the particular leaf of the Register wherein they are Registrate and that the Sheriffâ— Clerk take in no Hornings to be Registrate in their Books but against Persons dwelling within their Shire And the Lords recommend to the Lord Register to take special care of the exact observance hereof And also Ordain the Clerk of the Bills not to receive any Bill of Caption or others upon any Horning not Registrate and marked in manner foresaid And Ordain Letters of Horning to be direct hereupon upon a Charge of fifteen dayes ACT against Sollicitation
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
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
appearand Heir alioqui successurus because vita presumitur The Pursuer answered the Defense was not Relevant unless the Defender would be positive that the time of the Disposition his Elder Brother was on life especially seing he had been out of the Countrey twenty years and was commonly holden and repute to be Dead The Lords sustained the Defense that the Elder Brother was on life the time of the Disposition and reserved to their own consideration the Probation in which if the Defender proved simply that his Brother was actually living the time of the Disposition there would remain no question and if he prove that he was living about that time they would consider whether in this Case the presumption of his being yet living should be probative Paâ—rick Herron contra Martein Stevenson Iune 17. 1662. PAtrick Herron having obtained Decreet of Removing against Martein Stevinson he Suspends on this Reason that the Decreet was not upon Litiscontestation but a time being Assigned to the Suspender to find Caution for the violent Profits and he failing was Decerned without being admitted to any Defense and now alleadges that he ought not to remove because he obtained Decreet of Adjudication of the Lands in question against the common Author and thereupon charged the Superiour long before the Chargers Decreet of Adjudication or Infetment The Charger answered that the Reason ought to be Repelled because the Decreet was given against the Defender compearing and failing as said is Secondly The Charger stands Infeft upon his Adjudication The Pursuer was never Infeft neither did he use all Diligence to get himself Infeft not having Denunced the Superiour and in case he had Suspended Discussing the Suspension The Lords found the Reason Relevant and Proven and Suspended because they found no necessity for an Appryzer to use further Diligence against the Superiour then the Charge of Horning unless the Superiour had Suspended both and that in competition the other Party had done greater Diligence Earl of Marischal contra Charles Bray Iune 18. 1662. THe Earl of Marischal having obtained Decreet in his own Baron Court against Bray compearing for a years Rent of his Maines of Dunnottor herein he had been possest by the English Bray Suspends and alleadges compensation upon a Bond assigned to him due by the Charger who answered competent and omitted and so not receivable in the second Instance especially being Compensation which by special Act of Parliament is not to be admitted in the second Instance The Lords Sustained the Reason of Compensation and found that a Baron Court was not such a Iudicature as that Alleadgences competent and omitted that should be Repelled in the second Instance Mr. Iohn Wallace contra Forbes Iune 19. 1662. RObert and William Forbeses and Heugh Wallace being bound in a Bond as Co-principals Heugh Wallace being Distressed for all consigned the Sum to this Chargers Son Forbes Suspends on this Reason that there is no Clause of Relief in the Bond and Wallace being Debitor in solidum and having gotten Assignation confusione tollitur obligatio The Charger answered that though there was no Clauses of Relief hoc iâ—est where many Parties are bound conjunctly and severally that each is oblieged to relieve others The Lords Repelled the Reason of Suspension for the Suspenders part and found them lyable therefore but not for the other Co-principal Parties Isobel Drummond contra Iean Skeen Eodem die ISobel Drummond pursues Iean Skeen as behaving her self as Heir to her Brother Iames Skeen by uplifting the Mails of the Lands wherein he Dyed Infeft to fulfill her Contract of Marriage with Iames. The Defender alleadged absolvitor because the uplifted those Duties by vertue of her Infeftment being Served Heir to Iohn Skeen Son to Iames Skeen the Pursuers Debitor who was Infeft not as Heir to his Father Iames but as Heir to her Good-sire The Pursuer answered in respect to the Defenders Seasine or to Iohn Skeens which were evidently null seing Iames Skeen was Infeft and so John could not pass over him to his Goodsire and if any regard were to such Infeftment it would open a Door to all Fraud and abstracting of Defuncts Creditors Evidents The Lords found the Defense Relevant to purge this viticus passive Title seing the fâ—â—â—zie was not in this Defender but in John Skeen his Brother Son but prejudice to Reduce as accords but ordained her to Renunce to be Heir to James that Adjudications might be obtained Mr. Alexander Vernor contra George Allan June 24. 1662. MR. Alexander Vernor as Executor to Mr. David Calderwood Charges George Allane to pay a part of the Defuncts Stipend as he who intrometted with the Teinds of the Lands lyable therefore whereupon he had obtained Decreet The Suspender alleadged that the Decreet was in absence and any intromission he had was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor to whom he made payment bona fida before any Arrestment or Pursuit against him The Charger answered non Relevat because the Suspender is oblieged to know that by Law the Teinds are lyable for the Ministers Stipend Secondly He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual but that he took Disposition of the Corns ipsa corpora before they were drawn The Lords found the answer Relevant to elide the Reason and found the Defender lyable for the tenth part of the Cornes he bought Robert Hay contra Hoom of Blackburn Eodem die RObert Hay Tailzior pursues Hoom of Blackburn as representing his Father upon all the passive Titles to pay a Debt of his Fathers The Defender alleadged absolvitor because there was nothing produced to instruct the Debt but an Extract out of the Register bearing the Bond to have been Registrated by his Fathers consent whereas it is nottour and acknowledged by the Summons that his Father was Dead long before the Date of the Registration The Pursuer answered the Extract is sufficient to instruct the verity of the Bond being in a publick Register of the Session alb it the Defunct was Dead the time of the Registration which might have been the Creditors mistake and cannot prejudge them seing vitapresumitur especially now when through the loss of the Registers principal Writs cannot be gotten The Defender opponed his Defense and the Decisions of the Lords lately in the like case concerning the Earl of Errol because nothing can instruct against any man but either a Writ Subscribed by him or the Sentence of a Judge upon Citation or consent and this is neither The Lords refused the Extract simply but ordained the Pursuer to condescend upon Adminicles for instructing thereof either by Writ or Witnesses who saw the Bond c. of Woodhead contra Barbara Nairn Eodem die WOodhead pursues Barbara Nairn for the Mails and Duties of certain Lands The Pursuer alleadged absolvitor because she Defender stands Infeft in Liferent of these Lands It was Replyed The Defenders Husband
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
subscribed but by one Nottar and by one subscribing Witness there being more Witnesses insert in respect that Marriage followed thereupon Lord Couper contra Lord Pitsligo Iuly 3 1662. THE Lord Couper alleadging That being sitting in Parliament and taking out his Watch to see what hours it was he gave it to my Lord Pitsligo in his hand and that he refuses to restore it therefore craves to be restored and that he may have the Value of it pretio affectionis by his own Oath The Defender alleadged absolvitor because the lybell is not relevant not condescending quo modo the Defender is oblidged to restore for if the Pursuer insist upon his Real Right of the Watch as proprietar the Lybel is not relevant because he subsumes not that the Defender is possessor or haver of the Watch at the time of the Citation or since or at least dolo desijt poisidere or if the Pursuer insist upon a personal obligation he ought to subsume that the Defender borrowed the Watch or â—ook the custody thereof and thereby is Personally oblidged to keep and restore Secondly albeit the Lybel were relevant absolvitor because the Defender offers him to prove that the Pursuer having put his Watch in his hand as he conceives to see what hours it was The Defender according to the Ordinar Civillity they being both sitting in Parliament The Lord Sinclar putting forth his hand for a sight of the Watch The Defender did in the Pursuers presence put it in his hand without the Pursuers opposition or contradiction which must necessarily import his consent and liberat the Defender The Pursuer answered that he did now condescend that he lent his Watch to the Defender and that there was betwixt them Contractus commodati because the Defender having put forth his hand signifying his desire to call for the Watch. The Pursuer put the same in his hand and though there was no words yet this Contract may be celebrat by intervention of any signe of the Parties meaning which here could be no other then that which is Ordinar to lend the Defender the Watch to see what hours it was which importeth the Defenders oblidgment to restore the same To the second Defense non relevat because the Defenders giving of the Watch to the Lord Sinclar was so subit an Act that the Pursuer could not prohibite specially they being sitting in Parliament in the time and therefore in that Case his silence cannot import a Consent The Lords sustained the Lybel and repelled the Defence but would not suffer the price of the Watch to be proven by the Pursuers Oath but pro ut de jure Agnes Peacock contra Mathew Baillie Eodem die AGnes Peacock as Executrix to her Husband having pursued Mathew Baillie for payment of a Sum of Money he offered to prove payment and at the Term produced a Discharge whereupon the Pursuer took Instruments of the Production and offered to improve the same and craved that the Defender might be Ordained to Compear Personally and bide by the same and a Term being Assigned for that effect and the Pursuer Ordained to consigne a Pand in case she secumb in the Improbation and an Act Extracted thereupon The Defender coming from the Country and appearing Personally The Pursuer alleadged the Discharge is null wanting Witnesses The Defender alleadged non Competit in this state of the Process after the exception of Falshood quae est exceptoinum ultima but if the Defender had alleadged the same at the production The Defender would have replyed that it was Holographon and excluded any Improbation The Lords found the Exception of nullitie not competent in this state of the Process Allison Kello contra Paxtoun Eodem die IN a Process betwixt these Parties an exception having been proponed The Lords before answer Ordained the Proponer to produce the Writs with certification that the Defense should be holden as not proponed in termino certificatione being craved an Incident was produced because the Writs were the Proponders Authors Writs and in their hands It was answered that the Incident was not competent there being no litiscontestation It was answered that it was most competent wherever there was a certification as in Acts in Reduction and Improbation The Lords found the meaning of such Acts and Certifications to be only that the Parties should produce their own Writs they would make use of and such of their Authors Writs as they had the time of the Act and that the other Partie might have their Oath thereupon if they pleased and therefore refused the Incident Rentoun of Lambertoun contra Earl of Levin Eodem die LAmbertoun having intented an Improbation of Lands alleadged subscribed by his Father in Favours of the Umquhile Countess of Levin and her Daughters and others and having proceeded to the indirect manner Articles of Probation and Improbation were given in Writ hinc inde and a full Dispute thereupon and all such Witnesses examined as either Partie craved The Lords having Perused and Read the whole Process did upon the Defenders desire allow them to be heard viva voce and both Parties compearing The Pursuer referred the Dispute to the Lords without saying any further And the Defenders having related the Case and Debated in General anent the taking away of Writs by Presumptions and Conjectures and having entred to Repeat all that was in the written Dispute and to answer every alleadgance The Lords declared that it was not their meaning that the Dispute should be repeated but the material and weighty points which the Defender thought of most importance to have been resumed and urged shortly Referring to the rest the Lords Therefore they Ordained the Defenders to order their alleadgences as they might for all that they had to say betwixt ten and twelve the nixt day without any further unlesse the Pursuer answered Thomson contra Mackitrick Eodem die THomson and Mackitrick having Apprysed some Tenements in Drumfriese Mackitrick the first Appryser insists for Mails and Duties Thomson alleadged Mackitrick's Seasin was null as being within Burgh Royal and not given by the Baillies and Town Clerk of the Burgh conform to the Act of Parliament The Pursuer answered that his Seasin was given by the Provost and by a Nottar whom he imployed as Town Clerk not only in that but in several other Acts and that because the Town Clerk was excluded from his Office for not taking of the Tender and upon the same accompt there was no Baillie so that to compleat this Legal Diligence he was necessitat to take Infeftment by the Provost which is sufficient in such Cases because though the Act of Parliament mention the Baillies of the Burgh that it is in opposition to Baillies in that part but cannot be understood in opposition to the Provost who has Majorâ—m Iurisdictionem quia majori inest minus and offers them to prove that he was Provost at least habitus reputatus Provost and that he did imploy his
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ— other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ— found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
accordingly It was alleadged he could not have allowance of the sums payed to the Brother and Sister because these could not exclude lawful Creditors It was answered for Mr. William he had payed bona fide a part and had given Bond for the rest and could not now be called in question It was answered he was in mala fide because the payment was made after intenting of the Reduction against his Right at the pursuers Authors Instance Mr. William answered non Relevat unless there had been a Reason Libelled in that Reduction against these Bonds The Pursuer answered it was sufficient that Reduction was used against the whole Right to which any Reason might be added The Lords found this alleadgence not Relevent to put Mr. William in mala fide unless there had been a special Reason of Reduction filled up and shown to Mr. William against these Bonds particularly Margaret Anderson and Iohn Elphingstoun contra Mary Wachop Iuly 22. 1662. MArgaret Anderson and Iohn Elphingstoun as heir to Anderson who were the two Daughters of umquhil Mr. David Anderson of Hills pursues Mary Wachop his Relict and Executrix to fulfil an Article of his Contract of Marriage bearing That if there were no Heirs-male of the Marriage he band and oblieged him and his Heirs-male and Successors whatsomever to pay to the Daughters of the Marriage 3000. merks and craved that the Executrix as representing their Father might pay the same The Defender alleadged Absolvitor because it is clear by the Clausses of the Contract that the Father did not bind himself simply or himself and his Heirs but that he bound only himself and his Heirs-male which is the more clear that the Narrative of that Clause bears because his Estate is provided to his Heirs-male The Pursuer answered he opponed the Clause by which he did not only obliege his Heirs-male but himself and his Heirs-male and so in oblieging himself he hath oblieged all that Represent him and he might have been pursued in his own lifetime if his Daughters had come to the age appointed by the provision 2ly He has not only oblieged himself and his Heirs-male but his Successors whatsomever and therefore his Executors The Lords found that by the Tenor of the Clause and Narrative thereof the Defuncts meaning was chiefly to obliege his Heir-male and albeit Successors whatsomever was added yet by the Narrative and the order of the Words they found the Heir-male was first burdened and behoved first to be discussed Therefore ordained the Defender to condescend what the Heir-male had to succeed to and if he was not Entered Heir-male and had nothing to succeed to as Heir-male they thought the Defender would be lyable William Montgomery contra Theoder Montgomery Eodem die WIlliam Montgomery as Donator to the Escheat of Theoder Montgomeryâ— pursues a general and special Declarator in on Libel and insists first in the general The Defender alleadges Absolvitor because the Horning is null the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile The Pursuer opponed the Horning standing bearing the Defender to dwell in Edinburgh and the Horning could not be taken away by Exception alibi not instantly veryfied The Lords Repelled the Defense but prejudice of Reduction thereupon Secondly Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming because these fell not under single Escheat It was Replyed the Defense ought to be Repelled because the jus mariti falls under single Escheat of the Husband and carrys with it per consequence the Liferent of the Wife The Lords was clear that the Replâ— was Relevant but the Defense not being competent in the general Declarator which was first insisted in they give no Interlocutor on the Reply Lord Frazer contra Phillorth Iuly 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg at the Instance of the Lord Frazer against the Laird of Phillorth It was alleadged for the Defender Absolvitor because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors Ita est Frazer of Doors had no real Right in his Person never having been Seased at least there is Certification granted against Doors Seasin in the Improbation at the Iâ—stance of the Defender against the Pursuer and his Father so that Doors having no reall Right his Disposition Instrument of Resignation and Câ—arter granted by the King flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit who had Right to Pttsligo's Appryzing of the hail Estate of Phillorth can give no Right to declare the Property especially against the Defenders who hath a real Right by Infeftment flowing from Phillorth his Goodsyre by Resignation and flowing from the Lord Lovit which albeit posterior yet having the first Infeftment is the first and only Right The Pursuer answered the Defense ought to be Repelled because any Right the Defender hath is from his own Grand-Father to whom he was alioqui successurus and thereby the Defender is Successor titulo lucrativo to his Grand-father the common Author after the Disposition granted to Doors and as umquhil Phillorth Doors Author personali objectione would be excluded from opposing Doors Right of Property which Right he had Disponed to Doorsâ— and was oblieged to warrand no more can the Defender who by this same Right he Defends being successor Lucrative to his Grand-Father be heard to exclude the Pursuer who is Successor to Doors 2ly Albeit there be no Seasine yet umquhil Phillorth and Lovit were fully denuded in favours of Doors by the Resignation made in the Kings hands and Charter conform after which any Right granted by them to this Defender is a non haâ—ente potestatem 3ly Any Right the Defender hath flowing from the Lord Lovit cannot defend him because it was but an Appryzing against Phillorth the common Author and it is offered to be proven that the Appryzing was satisfied within the Legal in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly to Frazer of Doors for 20000. merks and the Lands of Innerallothy were Disponed by them to Lovits own Sons irredeemable the price of which Lands being 54000. merks was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties and so as to the Lands of Cairnbulg and remnant Lands appryzed the appryzing is extinct The Defender answered to the first that he is not Successor titulo lucrativo to his Goodsyre because the time of the Disposition by his Goodsyre to him and also the time of his Goodsyres death his Father was alive and served Heir to his Goodsyre 2ly There was no Right in his Goodsyre when he Disponed but all the Right was in the Lord Lovit by Pitsâ—igoes Appryzing neither was Lovit denuded by the Resignation or Charter without Seasine so but that the second Resignation with the first Infeftment is preferable 3ly Satisfaction of the Appryzing as it is alleadged is not Relevant unless
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
the Houses The Lords found there was yet place to Resile and therefore assoilzied Margaret Stevenson and her Son contra Ker and others Eodem die MArgaret Stevenson pursues Margaret Ker as vitious Intromissatrix with the Goods of her Husband for payment of a Debt wherein he was Cautioner She alleadged absolvitor because her Iutromission was purged in so far as she had Confirmed herself Executrix Creditrix It was answered by the Pursuer non relevat unless before intenting of the Cause The Defender answered it was sufficient being within year and day after the Defunct's Death Which the Lords found Relevant Lord Balnagoun contra M. Thomas Mckenzie Eodem die BAlnagoun as Donator to the Escheat of his Father pursues Mr Thomas Mckenzie for the price of some Lands sold to him by his Father and for the annualrents since It was answered for the Defender that there was no Annualrent due by the Minute and albeit it was the price of Land yet Balnagoun had never made Mr. Thomas a Right to this day but had forced him to be at a huge Expenses and Plea and so was in mora that the price was not payed and albeitâ—he did possess the Lands it was by redeeming Wodsets thereupon contained in the Minute The Lords found Mr. Thomas lyable either for the Annualrent or for the superplus of the Rents of the Land more then payed the Annualrent In this Process it was found that the Probation of a Tenor before an Inferiour Iudge was null Margaret Edgar contra Iohn Murray Ianuary 29. 1663. MArgaret Edgar having Charged Iohn Murray as Cautioner for the umquhil Viscount of Stormont he Suspends and offers him to prove by her Oath that she transacted with him to accept a Decreet against the principal to free him The Charger answered that she being a Wife clade with a Husband could not swear in his prejudice The Suspender Replyed that before her Marriage he had raised a Pursuit and Cited her to hear and see it found and declared he was free of Cautionry in respect of the said Transaction and so the matter being Litigious her marrying during the Dependence cannot exclude him from his Oath but must work against her Husband who is only jure mariti a Legal Assigney The Lords found this Reply Relevant Scot contra Mr. John Dickson Eodem die SCot as Assigney by her Father to a Bond Charges Mr. Iohn Dickson to make payment he Suspends on this Reason that the Assignation being while the Charger was Wife to Scot her Husband the Sum belonged to the Husband jure mariti and therefore craves Compensation of the like Sums payed to or for the Husband The Charger answered that though the Date of the Assignation was before her Husbands Death yet her Father keeped the same in his Custody and it was not Intimate till after the Husbands Death and so the Right not being Established in the Wifes Person by Intimation could not accresce to the Husband unless the Suspender would instruct that it was Intimate before The Lords found that seing the Assignation was now in the Wifes hands they would not put the Suspender to prove the Delivery thereof during the Marriage but that it was presumed to have been delivered according to the Date and that thereby it became the Husbands jure mariti though no Intimation was in his time Archibald Stuart contra Bogle and Matthie Ianuary 30. 1663. BOgle and Matthie being Conveened before Archibald Stuart as Baillie of the Regality of Glasgow for a wrong committed upon two other Persons in the Kirk upon the Sabbath thrusting in upon them in Seat and beating them they were therefore amerciat in 200. Pounds half to the Party and half to the Fiskall It was alleadged the Fine was exorbitant and that Inferiour Courts could not amerciat above ten Pounds as it had been found by several Decisions It was answered that this Court being a Regality and the Fact so atrocius the Fine was very Competent The Lords Sustained the Decreet Town of Linlithgow contra Inhabitants of Borrowstounness Eodem die THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness in their Town being an un-free man and exercising the Trade of Merchandise they put him in Prison he granted Bond to forbear in all time coming Likeas they fined him in a 100. merks he Suspended and raised Reduction on this Reason that the Bond was extorted when so far as he was summarly taken and put in Prison and could not get out till he promised to give the Bond and immediatly after he was out subscribed the same The Charger alleadged there was no unjust force or fear because by the Acts of Parliament in favours of Free Borrows all unfree men are discharged to exercise the Trade of Merchandise whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom Secondly They and all other free Borrows had immemorially possessed this priviledge to apprehend persons found within their Town and forced them to find Caution as Law will upon Debt due to any in the Town and particularly to put them in Prison till they give such Bonds in Surety as this The Suspender answered to the first there was no such Warrand by the Act of Parliament but only to Charge with general Letters un-free men to find Caution and for the Priviledge of Borrows to arrest un-free persons within their Towns it is only in case of Debts and other Merchandises due to Burgesses but cannot be extended to this Case where there is a special Order set down by Act of Parliament The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men and might judge thereanent but not summarly Incarcerate their Persons but only to Charge them and found their Custom and Priviledge not to extend to this Case and therefore found the Reason of Reduction Relevant The Lady Carnagy contra The Lord Cranburn Eodem die LAdy Anna Hamiltoun and the Lord Carnagie her Husband as having obtained a Gift of Recognition from the King of the Barony of Innerweek and being thereupon Infeft pursues the Lord Cranburn to whom the samine was Disponed by the Earl of Dirletoun Grand-Father to both for declaring the Recognition and the Donatrix Right in so far as Iames Maxwel late Earl of Dirletoun holding the saids Lands of His Majesties Ward and relief had without His Majesties consent Alienat and Disponed the same to Iames Cicile his Oye then second Son to the Lord Cranburn procreat betwixt him and the Earl of Dirletouns second Daughter It was alleadged for the Defender absolvitor because where there was no Infeftment there could be no Alienation nor Recognition and there could be no Infeftment without the same were granted to the Disponer or his Procurator to the accepter to his Procurator but here there was no accepter nor Procurator because Cranburn being then a Child and in England had granted no Mandat to take this Seasine and therefore had raised Reduction thereof
general Declarator it were not competent not being instantly verifyed without Reduction 3ly It were not probable but by Writ before the Denunciation and not by the Creditors Oath or having discharges being in prejudice of the KING but that no hazard might be of ante-dating it was required by Act of Parliament that beside the Writ the Parties should depone upon the truth of the Date The Defender answered to the first all Defenses competent in the general Declarator are reserved in the special To the second there is a Reduction depending The Lords found the Defense relevant only scripto of the Denuncer The Defender further alleadged the Horning was null as being upon a null Decreet and falling therewith in consequence The Lords repelled the Defense and found though the Decreet were null through informality yet the Horning would not be anulled but the Partie was in contempt in not Suspending debito tempore Compearance was also made for Mr. William Lauder who alleadged he had Disposition from the Rebel before year and day run The Lords found this Alleadgeance not relevant unless it were alleadged to be for a just Debt before the Denunciation It was further alleadged for Mr. William that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift by his appointment and he offered to satisfye the Donatars Debt and the whole expense of the Gift The Lords found this not relevant without a second Gift or Declaration from the Thesaurer Thomas Crawfoord contra 〈…〉 Eodem die THomas Crawfoord as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors It was alleadged no Process because Thomas as Factor for Robert Inglis had pursued the same Partie for the same Cause before the Commissaries of Edinburgh wherein Litiscontestation was made and so now it cannot be pursued elsewhere but the Process ought to be transferred and insisted in The Pursuer answered that he pursued then as Factor but now as Executor-Creditor who did not consider what Diligence Defuncts did but might insist therein or not 2dly This being a dilator is not instantly verifyed The Lords found the Defense relevant but would not find it competent unless instantly verifyed and because it behoved to be instructed by an Act Extracted Catharine Frazer contra Heugh Frazer February 11. 1663. THe said Catharine only Child of a second Marriage being provided to eight thousand merk of Portion at her age of 14 years but no oblidgment of Aliment or Annualrent till then pursues her Brother as Heir to her Fathers Estate being of a good condition for Aliment He alleadges he was oblidged for none not being Parent nor his Father oblidged by Contract or Bond for it The Lords found an Aliment due for the Pursuers Mother was not alive and able to Aliment her Lockie contra Patoun February 12. 1663. ELizabeth Lockie Spouse to Doctor Patoun pursues a Reduction of a Disposition granted by her Husband to certain Persons as prejudicial to her Contract in which Contract there was a Clause declaring Execution to pass at the instance of certain Persons who concur with this pursuit The Lords sustained the pursuit though it was not for Implement but for Reduction of a Right impeding the benefit of the Contract without concurse of the Husband seing the Process was against a Deed of the Husbands and he called passive Earl of Southesk and Carnegy contra Bromhall Eodem die BRomhall having taken the Lord Sinclar with Caption Southesk and his Son gave Bond to produce him to the Messengers or to pay the Sum. on the third of February betwixt two and ten whereupon Southesk having reproduced him craved by Supplication his Bond up or to be declared satisfied and extinct The Defender answered First He not being a Member or Dependent on the Colledge of Justice cannot be called thus summarily especially to declare a Bond void which is in effect a Reduction 2dly The Bond was not performed in so far as the Lord Sinclar was not reproduced till the 4th of February The Pursuer answered that the Defender living in Edinburgh and not compearing the Bill per modum quaerelae might be sustained To the second it being modica mora of one day without damnage to the Defender and there being trysting amongst the Parties all the time betwixt it was sufficient The Lords sustained the Petition and found it extinct Relict of George Morison contra His Heirs Eodem die THis Relict pursues for Implement of her Contract It was alleadged she had accepted a Wodset in full satisfaction thereof which now being Redeemed she could crave no more but Re-imploying the Money to her in Liferent The Lords found that this acceptance by the Wife being donatio inter virum uxorem she might now revock it and therefore found the Heir lyable to make up what was in the Contract The Town of Linlithgow contra Unfree-men of Borrowstounness February 13. 1663. THe Town of Linlithgow insisted in their Charge upon a Bond granted by some Inhabitants of Borrowstounness oblidging them to disist and cease from usâ—ing the Merchant Trade under the pain of 500 merk which was Suspended on this Reason that the Bond was extorted by unwarrantable force in so far as the Suspenders were taken in Linlithgow brevi manu and incarcerat till they granted the Bond. The Charger produced a Decreet of the Lords in Anno 1643. against several Inhabitants in Borrowstounness compearand who having Suspended the general Letters upon Act of Parliament for finding Caution to desist c. The Letters were found orderly proceeded and the Town of Linlithgow impowred not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness if they medled in Merchant Trading but also bearing with power to put the Persons using the saids Merchant Trade in Prison till Justice were done upon them and thereupon alleadge that the Suspenders being incarcerat by vertue and conform to the foresaid Decreet standing there was no unwarrantable Force used 2dly They produced an Act of the Council of Linlithgâ—w Bearing the Suspenders to have compeared before the Council and to have confessed their wronging of the said Town in the Trade of Merchandize and that there was Horning and Caption against them for the Cause and therefore declared their willingness to grant the Bond in Question The Suspenders answered to the First That albeit the foresaid Decreet bear compearance yet there is no Dispute in it and it is evident to be by Collusion and Surreptitious because this Conclusion now alleadged is ultra petita there being no such thing in the general Letters nor doth the Decreet bear any special Charge given neither is this Conclusion warrantable by any Law or Act of Parliament 2dly This Decreet could be no warrant to Incarcerat the Suspenders because it is given only against some particular Persons then living in Borrowstounness without calling either of the Barron or Baillies of the Burgh of Bâ—rronie and therefore is null as to any other Persons and as to the
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
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
Benefice by his Right of Presentation and Collation It was alleadged for the Collectors of the vacant Stipends that his Stipend was not as the allowance of an helper but was a several Congregation separate from the Parsonage of Peebles and at the Parsons Presentation and that no helper has a Presentation and that the Incumbent not being admitted till after Michaelmess has no Right to any part of the Fruits of that year though he was Presented before because the Kirk cannot be said to be full but vacant till the Minister be admitted The Lords found that this Kirk having a Presentation could not return in the vacancy to the Parson of Peebles and that the Presentation being at Lambas and the Incumbent serving at the Kirk and Entring to his Tryals immediatly till he was Entred which was in October thereafter and that he had Right to the half of that years Stipend not being presented before Whitsonday and found the other half to belong to the Collector of vacand Stipends Lairds of Tulliallan and Condie contra Crawfoord Eodem die THe Lairds of Tulliallan and Condie as having a Right from him pursues Declarator of the Expiration of an Appryzing led at the Instance of Crawfoord to which Margaret Crawfoord his Daughter has now Right and condescends that the sum Appryzed for was satisfied within the Legal by Compensation in so far as Tulliallan had Right to a Contract whereby Crawfoord the Appryzer was oblieged to deliver so many Chalders of Coal weekly or in Case of Failzie four pounds for ilk Chalder It was alleadged for the Defender that this Article of Compensation ought to be repelled First because the said Contract is prescribed 2ly The Appryzing proceeded upon a Decreet of Compt and Reckoning wherein an Alleadgence being founded upon the same Contract was past from pro loco tempore and so can never now be made use of to take away that Decreet much less the Appryzing against a singular Successor who seing the same past in tuto to take Right without the hazard thereof 3ly The Defender cannot be oblieged after fourty or fifty years time to prove the Delivery of an yearly Duty of Coal 4ly The Compensation is not de liquido in liquidum because the one is a personal Contract the other is an Apprysing and Infeftment the one hath not a liquid price Constitute but bears expresly such a Sum in case of failzie and not as the price which being much more then the ordinar price then is but a personal failzie which cannot be liquidat till Declarator and modification of a Judge The Pursuer answered that he was evicting the rigor of an Appryzing in causa maxime favorabili And as to the first alleadgence anent the Prescription offers to prove Interruption by Arrestments c. To the second not Relevant according to the Custome before the years 1649. competent and omitted was not relevant against Decreets of Suspension But Suspenders might either omit or pass from their Reasons and Suspend upon them again which could not but be alswell effectual against the Assigney as the Cedent As to the third this Article being instructed by Writ no presumption nor less time then Prescription could take it away To the which the Coals having a liquid Sum in lieu thereof the Article is liquid and as payment within the legal will annul an Appryzing so will Compensation which is equiparat in Law though the Case would not be alike in a Wodset against a singular Successor The Lords found the Defenses against this Article relevant viz. that the Article was not liquid by a Sum Constitute expresly for a price and that it being alleadged that in the Decreet this alleadgeance was past from and an expresse reservation that it might be made use of against any other just Debt then that which was in the Decreet whereupon the Appryzing proceeded The Lords had also consideration that the Legal of the Appryzing was not yet expired Lyon of Muirask contra Laird of Elsick Eodem die LYon of Muirask pursues the Laird of Elsick upon a Debt of his Fathers as Successor titulo lacrativo The Defender alleadged absolvitor because any Disposition he had from his Father was in his Contract of Marriage whereby 10000â— merks of Tocher was received by his Father and 14000. merks of Debt more undertaken for his Father with the burden of his Fathers Liferent The Pursuer answered the alleadgeance ought to be repelled because he offered him to prove that the Land Disponed was then worth fourty or fifty Chalders of Victual so that the Cause onerous was not the half of the value and therefore as to the Superplus he was Lucrative Successor The Defender answered that any onerous Cause or price though incompetent was enough to purge this passive Title and albeit the Pursuer might reduce the Right and make the Lands lyable because the Cause was not onerous and equivalent yet he could not be personally lyable in solidum for all the Defuncts Debts The Lords having seriously considered the bussinesse after a former Interlocutor the last Session Assoilzing from the passive Title but finding the Lands redeemable by the Pursuer or any other Creditor for the sums payed out did now find further that the Defender was lyable for the superplus of the just price of the Land according to the ordinar Rate the time of the Disposition and that the superplus over and above what he payed or undertook ought to bear Annualrent as being the price of Land Iames Iustice contra Earl of Queensberry Eodem die IAmes Iustice as having right to a Bond of 6000. merks due by the Earl of Queensberry pursues the Earl and the Lord Drumâ—anrig his Son as taking his Estate with the burden of his Debt to pay it who alleadged no Processe because the Pursuers Right was an Assignation granted by a Tutrix not bearing in Name of the Pupil or as Tutrix in his Name because being in infancy he could not subscribe but bearing to be done by her as taking burden for the Pupil The Lords found the Assignation not formal not bearing the Pupil Disponer with his Tutrix but yet found the Letters orderly proceeded the Charger before Extract producing a Ratification by the Pupil and Tutrix formally done Laird of Prestoun contra Nathaniel Ebred Iune 24. 1664. THe Laird of Prestoun pursues Reduction and Improbation against Nathaniel Ebred of all his Rights of certain Lands The Defender alleadged Absolvitor because the Lands in question are Abbay-lands Erected in a temporal Holding in favour of Prestoun and therefore by the Act of Parliament 1633. all such Lands are annexed to the Crown and the Feu-duties are only found due to the Lords of Erection ay and while they be redeemed which is repeited in the 30. Act of Parliament 1661. and therefore the Pursuer not being Superiour but the King he has no interest to Improve of Reduce The Pursuer answered that he opponed his Infeftment of the Lands holden of the King
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-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-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
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
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
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
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
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
the Liferenter dyed during the Minors Minoritie he might return to the possession in the same way as if the Liferenter were in possession but as for the tollerance now the Liferenter having entered by the Liferent Right and it being reduced in favours of the Pursuer as the Minor could not thereby attain possession so neither can he give tollerance to defend the Liferenter The Lords repelled also this second Defense Patrick Urquhart contra Thomas Blair Eodem die PAtrick Vrquhart having charged Thomas Blair upon a Bond granted by him and William Young as co-principalls Thomas Blair Suspends and alleadges that William Young has payed the whole It was answered that this was not instructed and therefore not receivable being in a Suspension It was answered that though in a Suspension yet a terme is always granted where it is another mans Right It was answered that the Suspender is in hazard of breaking and has not found a good sufficient Cautioner and therefore if he get delay he ought to give better Caution It was answered that he had found Caution who was accepted and he was oblidged to do no more The Lords ordained him to make faith de calumnia upon the Reason but would not put him to find new Caution Robert Scot contra Silvertounhill Eodem die RObert Scot pursuing a Poynding of the Ground for an Annualrent Silvertounhill compeared and alleadged possession by vertue of a prior Annualrent and that the Pursuers Infeftment was base not cled with Possession For proving Possession Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time for himself and in name of the Tenents which had Witnesses But designed not the Writers name and being alleadged to be null for want thereof The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another Johnstoun of Scheens contra Alexander Brown Eodem die JOhnstoun being pursued to remove from certain Lands It was alleadged no Process because all Parties having interest were not called viz. The Defenders wife in respect he possest but by her Right jure mariti and she was not warned Which the Lords found relevant Mr. Thomas Johnstoun contra Mcgregor Iuly 19. 1665. MR. Thomas Iohnstoun having obtained the Gift of Bastardie of one Mcgregor and declared in general insists now in his special Declarator against Patrick Mcgregor for 2000 merks belonging to the Bastard It was alleadged absolvitor because there was a Gift granted in the Usurpers time and declared whereupon the Defender had transacted with the Donatar and satisfied him and obtained his discharge It was answered non relevat because in the Act of Parliament confirming Judicial Precedor under the Usurpers Gifts of Bastardry and all following thereupon are excepted so that the Defender had no Defense in the point of Right and as for his bona fides it only relevant for what was truly payed but not for what was in his hand The Lords repelled the Defense in respect of the Reply Mr. James Winerham conra Lady Idingtoun Iuly 19. 1665. MR. Iames Winerham pursues the Lady Idingtoun personally for Feu-Duties out of certain Lands Liferented by her It was answered non relevat for any years before the Ladies possession because Feu Duties may be Pursued either really by poynding of the Ground or personally against the Intrometters with their profits and because the Feu-duties are as the yearly Rent yet that cannot be extended further than during the years the Possessors intrometted The Pursuer answered that the whole profits being lyable for the whole Feu-duties whether of that or preceeding years the Lady was lyable not only for the years of her possession but for bygones The Lords repelled the alleadgeance and found the Lady lyable personally only for the years of her possession Ryce Gum contra Mckewn Eodem die RYce Gum having obtained Decreet before the Baillies of the Cannongate against Mckewn to repone him to an Assignation he Suspends on this Reason that the Decreet was null wanting Probation proceeding only upon the alleadged judicial confession of the Suspender without proponing any defense acknowledging the Lybel and succumbing in the Defense but simply confessing the Lybel which cannot prove against him being under the hand of an Clerk of an Inferiour Court only without the Suspenders subscription or oath Which the Lords found relevant Mr. Robert Dickson contra Mr. Mark Ker. Iuly 21 1665. THere being a competition betwixt Mr. Robert Dickson and Mr. Mark Ker as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day Mr. Robert Dickson had past in Exchequer long before and his Summons was raised two dayes before his Gift was Sealed and so was not a Regular Diligence He alleadges Mr. Mark Kers was more irregular because being a Declarator his Summons was not upon 21. days It was answered the Summons was priviledged It was Replyed that the priviledge was granted periculo petentis upon a common Bill which passes without observation The Lords considering that their Gifts were both past in one day and that there diligence was so near conjoyned the Gift and declared them joyntly Spreul contra Miller Eodem die BArbara Miller having left two Legaces and named William Wilson her Executor and universal Legatar he nominats his Wife and one Giffin his Executors Spreul having right to the two Legacies pursues the Relict and Executors of Wilson who was Executor to Barbara Miller for payment of the Legacies He alleadges absolvitor because the first Testament was not Execute 2ly The special Legacies must be abated proportionally with the general Legacies The Lords repelled both the Defenses and found the general Legacie not to come in pari passu with the special and found that the Executor of the Executor was lyable unless he could alleadge that the first Executor had done diligence and had not recovered or was exhausted Laird of Ludquharn contra Laird of Gight Iuly 21. 1665. THe Laird of Gight having Married Ludquharns Daughter who remained in her Fathers Family and brought forth a Bairn to Gight and dyed Ludquharn the Childs Guid-sir keeped her in his Family several years and now pursues Gight for her Aliment who alleadged absovitor because the Pursuer never having required a promise of this Aliment nor desired the Defender to take home his Daughter It must be presumed that the Pursuer did it animo donandi for his own Oye The Lords found this Defense relevant for all years preceeding the intenting of this Cause Thomas Rew contra Viscount of Stormont Iuly 22. 1665. THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont who alleadged no Process because the Citation was not within year and day of the Summons the warrant thereof which bears to cite the Defenders to compear the day of next to come The Lords found the Defense relevant Johnstoun contra Tennents of Achincorse
albeit it appears to flow from the Mother yet that is but dolose and in effect it flows from the Father 2. Seing the superplus was appointed to be an Aliment to the hail Children seing there is but one it ought to be modified and what remained above the 600. merks and a competent Aliment to belong to the Creditors The Lords found that the Childs Renunciation should repone himâ— and found that if the Provision had been Exorbitant it might have been counted as fraudulent but they found it not exorbitant seing the Land was offered to the Defenders for 900. merks and there was 200. merks thereof Liferented by another Woman so that there râ—mained but 100. merks for the Child and therefore Repelled the Defenses and Decerned VVilliam Dickson contra Iohn Hoom. Eodem die WIlliam Dickson having charged Iohn Hoom upon a Bond of 37. Pounds Scots He suspends and offers to improve the Bond as not subscribed by him but another Iohn Hoom. It was answered Improbation was not receivable but in a Reduction or where the original Writ was produced But this Bond was Registrate in an Inferiour Court and the Charger was not oblieged to produce nor was the Clerk called The Lords in respect the matter was of small importance admitted the Reason of Improbation the Suspender Consigning principal Sum and Annualrent and declared they would modifie a great Penalty in case he succumbed and ordained Letters to be direct against the Clerk of the inferiour Court to produce the principal Howison contra Cockburn November 17. 1665. THe Executors of David Howison pursue Iames Cockburn for the price of several ells of Cloath which the said Iames by his Ticket produced granted him to have received in name and for the use of the Laird of Langtoun his Master It was alleadged absolvitor because by the Ticket the Defender is not oblieged to pay the Cloath and doth only act in name of his Master and therefore the Merchant ought to have called for the Accompt from his Master within three years which he has not done till many years long after his Masters death It was replyed that the Ticket must obliege him at least docere demandato for his doing in name of his Master could not obliege his Master so that if he be not so oblieged the Merchant loses his Debt and no body is oblieged It was answered that he who Acts with any Mandatar should know his Commission and if he does not know it it is upon his own hazard but if the Mandatar Act not in his own name but his Masters he does not obliege himself and if Servants who receive in their Masters name should be thus oblieged to shew their warrand it would be of very evil consequence seing their Receipt can be proven by Witnesses within three years and their Warrand would not be so probable The Lords found that post tantum tempus the Defender was not oblieged to instruct his warrand but the same was presumed to have been known to the Merchant unless it be proven by the Defenders Oath that he acted without a warrand or that he did not apply the Cloath to his Masters use Baxters in the Canongate November 21. 1665. THere being a Contract betwixt two Baxters in the Canongate to make use of an Oven still keeped hot for both their uses the one pursues the other as desisting and obtained Decreet before the Baillies of the Canongate for 36. Pounds of Damnage which being Suspended It was alleadged ipso jure null as having compearance mentioning Defenses Replys c. And yet expressing none but refers the Defenders Action to the Pursuers Probation by Witnesses who now offered to prove positive that he continued in doing his part The Lords would not sustain this visible Nullity without Reduction though in re minina inter pauperes for preserving of Form Laurence Scot. contra David Boswel of Auchinleck November 22. 1665. UMquhil David Boswel of Auchinleck being Debitor to Laurence Scot in 1000. pounds by Bond He pursues his Daughters as Heirs of line and David Boswel now of Auchinleck his Brothers Son as Heir-mail or at least lucrative Successor by accepting a Disposition of Lands from the Defunct which were provided to Heirs-mail and so being alioqui successurus It was alleadged for the said David no Process against him till the Heirs of Line were first discuâ—â— It was Replyed and offered to be proven that he was oblieged to relieve the Heirs of Line Which the Lords found Relevant It was further alleadged for the Defender that he could not be conveened as lucrative Successor by the foresaid Disposition because the time of the Disposition he was not alioqui successurus in respect that his Father was living It was answered that albeit he was not immediat Successor yet being the mediat Successor the Disposition was precepâ—â—o haereditatis and the Lords had already found that a Disposition to an Oye made him Lucrative Successor albeit his Father who was immediat appearand Heir was living The Lords sustained not the Lylel upon that member for they found it was not alike to Dispone to a Brother as to a Son or a Brothers-son as to an Oye because a Brother is not appearand Heir nor alioqui successurus seing the Disponer has haeredes propinquiores in spe and therefore cannot be presumed to have Disponed to his Brother or Brother Son in fraud of his Creditors seing that by that Disposition he does also prejudge his own Son if he should have one and this 〈◊〉 prejudice to the Pursuer to Reduce the Disposition upon the Act of Parliament as accords Mr. Iames Campbel contra Doctor Beaton November 23. 1665. DOctor Beaton being Infeft in certain Lands Wodset by the Laird of Balgillo does thereafter by a minute take an absolute Disposition thereof for a price exprest in the Minute whereupon Mr. Iames Campbel arrests in Doctor Beatons hands all Sums due by him to Balgillo for payment of a Debt due by Magillo to Mr. Iames and likewise Iuhibits Bagillo after which there is a Tripartite Contract betwixt Bagillo on the first part the Doctor on the second and Iohn Smith who bought the Lands on the third the Doctor and Bagillo Dispone with mutual consent and the Doctor particularly assigns the Minute to Smith Bagilâ—o Renounces the Minute as to the price and Smith is oblieged to pay the Wodset to the Doctor the Debitor being before conveened for making arrested Goods forthcoming and having Deponed that he was owing no Sums to Bagillo the time of the arrestment but by the Minute which was an Inchoat Bargain never perfected but was past from thereafter and that he was not Disponer to Smith but only consenter whereupon he was assoilzied But Mr. Iames Campbel having now found the Tripartite Contract pursues the Doctor again thereupon super dolo that by passing from the Bargain and yet assigning the Minute and not destroying it he had dolose evacuate Mr. Iames Inhibition and Arrestment seing Smith
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupil◠and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fathe◠Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
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
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
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
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
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
far as his Fathers Liferent was reserved thereby and his Father Possessing by vertue of the Reservation did validat his Infeftment 2ly Albert the Fathers own Possession could not be sufficient yet the Father having Transmitted his Right to Watson and Watson Possessing the Suspicion of â—â—mulation ceased and there is a Disposition produced by the Father to Watson which though it bear to be of the Fee yet can import no more but to be of the Liferent seing the Father had no more neither needs it have an Infeftment seing it hath but the effect of an Assignation to a Liferent It was answered that if the Father had expresly assigned his Liferent reserved in the base Infeftment it might have been the ground of a question whether the Assigneys Possessing so would have validat the base Infeftment But since the Father has not taken notice of the Reservation but Dispones as Heretor it clears that he did not Possess by the Reservation but by his own prior Right The Lords found the Reason of Reduction and Reply Relevant and that the Fathers Possessing by himself or Watsons Possessing by himself could not validat the base Infeftment Charles Cass contra Mr. Iohn Wat. Eodem die DOctor Cass having taken Infeftment of an annualrent out of the Lands of Robertland in name of Cockpen and Adam Wat Charles Cass as Heir to the Doctor pursues Mr. Iohn Wat as Heir to his Father for Compt and Reckoning of the Mails and Duties and Charges him with the hail Rental being intrometted or ought to have been intrometted with by him and his Father by vertue of the Trust in their Person and also Adam Wat took a gift of Tutory to the Pursuer and so is lyable as his Tutor The Defender answered that his Fathers Name being borrowed on Trust could lay no Obligation on him to do any Diligence but what he thought fit seing by his Back-bond he was obliged to denude himself whenever the Doctor pleased and the Pursuer has reason to thank him for what he did and not burden him with what he omitted seing he had no allowance therefore and as for the Tutory there was a multiple Poinding all the time thereof depending among five or six Parties pretending Right by the dependence whereby the Tutor was excluded The Pursuer answered that the Defenders Name was not borrowed without his knowledge but that he accepted thereof and entred to Possession and as an Appryzer is not obliged to Possess but if he Possess must be answerable for the Rents of the Lands conform to the Rental so must the Defender The Lords found the Defender not lyable to Diligence by vertue of the Trust albeit he did Possess but Ordained him to Compt for his intromission and to condescend what Diligence his Father did as Tutor that if he be found deficient therein there might be an additional Accompt to what he intrometted with Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666. MR. Iames Cheap charges Mr. Iohn Philip to fulfil a Minute of Alienanation of the Lands of Ormestoun sold by Mr. Iames to Mr. Iohn whereby Mr. Iohn was obliged to pay 25500 merks as the price or to assign sufficient Bonds therefore He Suspends and offers to Consign Bonds and amongst the rest a Bond of 8000 merks due by the Town of Edinburgh The Charger alleadged that he was not obliged to accept that Bond because at the time of the agreement and Subscription of the Minut the Charger particularly excepted the Town of Edinburghs Debt and the Suspender declared that it should be no part of the price which he offered to prove by the Writer and Witnesses insert in the Minute The Suspender answered that Witnesses were not competent in this Case where the words of the Minute are not dubious but clear and general of any sufficient Debt for if this were sustained the alteration of the price as well as the manner of payment might be proven by Witnesses It was answered that it was no way alike nothing being here in question but the manner of payment and not the quantity of the price The Lords Ordained the Writer and Witnesses to be Examined before answer Ianet Thomson contra Stevinson Eodem die IN the Reduction on Minority at the Instance of Ianet Thomson contra Stevinson The Lords Ordained the Pursuers Mother to be received Witness of her Age cum nota there being a Testificat already produced and there being 30 or 40 years since the Pursuers Birth after which time it was not likely that others would remember but she was ordained to Deponâ— who were Witnesses at the Birth and Baptism and these to be Examined Corstorphin contra Martines Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister in lecto It was alleadged by Martines to whom the Disposition was made that he could not quarrel the same because his Father to whom he is Heir and the other Brethren and Sisters of the Defunct had approven whatsoever Testament Legacy or Disposition made or to be made by the Defunct of her Goods and Gear Debts and sums of Money and others whatsoever that she had or should have the time of her Decease so that she having made this Disposition he cannot quarrel the same The Pursuer answered First That the Ratification in the Terms foresaid could not be extended to Lands or Annualrents Constitute by Infeftment there being no mention of Lands Annualrents or Heretage therein 2ly It could not be extended to any Disposition but Legally made and therefore not to Dispositions on Death-bed The Defender answered that the Ratification bearing expresly sums of Money did comprehend all sums although Infeftment of Annualrent were granted for security thereof which being but accessory to the sum follows the same 2ly There could be no other effect of the Ratification if it were not to exclude the Heir from quarreling thereof as being in lecto for if the same was made by the Defunct in her leige poustie it were valide and unquarrelable in it self and albeit it bear not mention of Death-bed yet it expresses Disposition of all Goods she should happen to have the time of her Death so that if she had acquired Rights after her sickness contracted she might Dispone the same validly by this Ratification and yet behoved to be on Death-bed The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed which was carried but by one Vote and so they came not to the second Point William Yeoman contra Mr. Patrick Oliphant Eodem die WIlliam Yeoman having apprized the Lands of Iames Oliphant Son to Sir Iames Oliphant and Mr. Patrick Oliphant having also appryzed the same William insists on this reason that Mr. Patricks appryzing was satisfied by Intromission within the legal Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing because the two part thereof did only belong to his Debitor and the third
part to Dame Geils Moncrief who had right to a Terce thereof and to whom Mr. Patrick was only lyable and countable and for a part of the years he was her Tennent and had Right from her It was answered that the Tercer had no compleat Right till she was Served and kend to her Terce which being done after the years in question the Fiar might have Possest the whole till her Service and might have forced the Possessors to pay him so the Appryzer entring in Possession of the whole upon his Appryzing cannot pretend the Right of the Tercer and his taking Tack of her was unwarrantable till she was Served and done of purpose that his Appryzing might not be fully satisfied and so the Legal might expyre which is most rigorous and unjust and offered presently to satisfie the Tercer of her third It was answered that the Service whensoever done is drawn back to the Husbands death and doth but declare and not constitute the Wifes Right like the Service of an Heir The Lords found that Mr. Patrick could not cloath himself with the Tercers Right to cause the legal expyre but found the offer Relevant for besides the favour of the Cause the case is not alike with an appear and Heir whose Right though not declared yet he continues in his Predecessors Possession and none other hath any Interest but the Fiar might possess the whole and exclude the Tercer till she were Served Paul Henrison contra Laird Ludquharn Decemb. 22. 1666. PAul Henrison Indweller in the Island of Helgilland being at the mouth of the Elve fraughted to Scotland by Hamburgers was taken by a Privateer and declared Pryze at Peterhead by the Laird of Ludquharn Admiral Depute there whereupon he addrest himself to the Admiral Court at Leith and obtained Decreet for restoring of his Ship upon compearance Ludquharn gives in a Bill of Suspension of this Decreet and to dispatch the Stranger because it was ordained to be heard upon the Bill Ludquharn alleadged that the Admirals Decreet was unjust because he offered him to prove by Merchants in Edinburgh that Helligilland is a part of the Dominion of Denmark and albeit it be in the present Possession of the Duke of Holstein yet he holds it of the Crown of Denmark and as to that he is Subject to the King of Denmark and therefore the Inhabitants of that Island are in the state of enimity with the King and so lawful Pryze It was answered that the Stranger hath produced a Pass of Sir William Swan the Kings Agent at Hamburgh bearing that he had taken tryal and found the Ship to be free and it being notour and acknowledged that this Stranger is a Subject of the Duke of Holstein who is a Prince of the Empire and in Amity with His Majesty as is declared by a Letter of the King to the Lord Commissioner it must extend to all His present Subjects who are not oblieged to Dispute how he holds this Islands or when he got the Right thereof and his Pass bears him to be a Natural Subject of the Duke of Holsteins and not of the King of Denmark It was answered that the Right of this Island was only in Impignoration and only in Possession of the Duke of Holstein within this ten year The Lords adhered to the Admirals Decreet and Repelled the Reasons of the Bill Tweeddies contra Tweeddie Eodem die UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son at the same time his Son gives a Bond to his Mother and her Heirs of six thousand merks the Mother being dead the other five Bairns pursues a Declarator of Trust against the Heir that this was the Bairns Provision put in the Name of the Mother and offers to prove the same by the Wryter and Witnesses insert It was answered that Trust was not so probable otherwise all Rights might be inverted by Witnesses whose Testimonies our Law hath Restricted to an hundred Pounds It was answered that much more was to be attribute to Witnesses insert upon whose Testimonies the Parties condescend and confide than to common Witnesses 2dly Albeit Witnesses were not receiveable to prove Trust alone Yet where there are strong presumptions concurring they are admittable even to annul Writs of the greatest importance as is ordinarly used in the indirect manner of Improbations and here are strong presumptions viz. That the Father at the time of this Bond did Dispone to the Defender his Eldest Son his whole Estate without a Reservation of his own Liferent or any other thing and there were five Children beside who had no Provision So that albeit this Bond be conceived to the Wife her Heirs and Assigneys yet cannot be presumed to be intended to have fallen back to the Defender as her Heir The Lords in respect of the presumptions were inclinable to admit the Witnesses but they ordained the Pursuers before answer to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust. Iames Hoge in Edinburgh contra Iames Hoge in Dalkeith Ianuary 2. 1667. JAmes Hoge in Edinburgh pursues a Declarator of Redemption agaist Iames Hoge in Dalkeith who alleadged Absolvitor because the whole sum contained in the Reversion was not Consigned It was answered there was Consigned the equivalent viz. A Decreet against the Defender for a Liquide sum which behoved to compense It was answered that Reversions being strictissimi juris Compensations are not to be admitted therein otherwayes Wodsetters may be much prejudgeed by taking Assignations from their Creditors and Consigning the same and frustrating them of their Moneys which they had designed for other Creditors and other uses It was answered that this was no Extrinsick Compensation but a Decreet founded upon an Article contained in the Contract of Wodset Upon which consideration the Lords Sustained the Order and Declared Earl of Murray contra Iohn Hume Eodem die THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties or else to Remove Who alleadged Absolvitor because the Earl was Debitor to him in a Sum exceeding all the bygone Rents and this Action hath no place but when there are some years Rent Resting It was answered That the Defender was at the Horn and his Escheat taken and so was manifestly vergent ad inopiam The Lords would not Sustain this Member unless bygones had been owing but Superceeded to give answer till the Compensation were proven Francis Hamiltoun contra Eodem die FRancis Hamiltoun having Suspended a Decreet obtained against him for House-mails on this Reason that his Wife only took the Tack which could not oblige him It was answered that his Wife keeping a publick Tavern was evidently praeposita huic negotio Which the Lords Sustained Another Reason was that the House became insufficient in the Roof and the Defender before the Term required the Pursuer to Repair the same which he did not and the Neighbouring House called
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
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
seven and eight at night and albeit it had been later that the Defender might be excusable not to come out of his own House to search yet here he was in the same house with the Rebel and in the next Room to him and heard the noise of these that deforced the Messenger which was done by the Towns Officers neither can any pretence of Ordering of Quarters stop the Execution of the Kings Letters which might have been done with so little diversion and the Quarters might have been Ordered by the Baillies The Lords found the Libel Relevant but found the Defenses joyntly also Relevant viz. The Ordering of the Quarters of the Army the Ordering of the Officers and the offer now to put the Rebel in Prison in as good case and the time of night Harner contra Haitly Eodem die HArner pursues Haitly as representing her Husband for proving the Tenor of her Contract of Marriage who alleadged no Process because there was no Adminicle produced in write which was most necessar in any Case but especially in this Case where the Tenor of the Contract was extraordinar Constituting the one half of the Fee of the Husbands Estate to the Wifes Heirs failzing the Heirs of the Marriage The Pursuer answered that albeit Adminicles in Writ were ordinarly required especially in Writs that use to be taken away by Redelivery or Cancelling as Bonds c. Yet the intent of Adminicles is to render it probable that such a Writ was and thereby to give ground to admit Witnesses to prove rei gestae veritatem But here there was as strong grounds of probability there being a Marriage of a Landed Man and the Copy of the Contract taken of the Writer thereof Iohn Nicol his Style Book he and his Servants being Witnesses who are yet alive and the Tenor offered to be proven by them whereas other Tenors use to be proven by Witnesses that saw the Writ though they were not the Witnesses insert Likeas the Husband having taken the Right of an Infeftment for a sum payable to him and his Wife and the Heirs betwixt them which failzing to his Heirs he took a Ratification thereof from the Pursuer which could have no intent if in case of failzie of Heirs of the Marriage the half had not been appointed to return to her Heirs Likeas it is offered to be proven by Witnesses that the Husband acknowledged that he had the Contract in custody from his Wife The Defender answered that our Law had rejected Probation by Witnesses in matters of Importance and therefore Tenors are only Sustained when their Probation is partly by Writ and partly by Witnesses neither is any other probability sufficient and it is offered to be proven that the Husband Infeft his Wife in his Houses of a considerable value without any mention of a Contract of Marriage The Lords refused to sustain the Libel without Adminicles in Writ and assoilzâ—ed albeit it was also offered to be proven that the Husbands whole means came by the Wife Patrick Wat contra William Halyburton Iune 14. 1667. PAtrick Wat as Assigney by Adam Wat his Father to a Disposition granted by umquhil Halyburton to him pursues William Halyburton as Representing him to fulfil that part of the Disposition obliging him to procure the Pursuers Father Infeft and for that effect that the Defender should Infeft himself and grant Procuratory of Resignation for Infefting the pursuer It was alleadged for the Defender that he was not obliged to Infeft the Pursuer because it was his Fathers fault he was not Infeft seing he had received Procuratory of Resignation and Precept of Seasine with which he might have Infeft himself and though the Granter and he the Receiver lived for twelve or fifteen years thereafter he was negligent 2ly Though the Defender were obliged to Enter and Denude himself yet it must be the Pursuer finding Caution to warrand and relieve him of the hazard of the Ward and Marriage because the Lands in question being Ward through the Pursuers Authors fault the Defenders Marriage will fall 3ly The Defenders Fathers Name was only borrowed by Hallyburton of Egles-cairn who acquired the Rights blank and filled up the Defenders Fathers Name therein and moved him to Dispone The Lords Repelled these Defenses but Reserved to the Defender to pursue Damnage and interest for any hazard occurred by Adam Wats fault as being more proper against his Heir than against the Pursuer his second Son Mr. Heugh Gray contra Forbes Minister of Innerkeithing and Tennents of Nether-Horseburgh Iune 15. 1667. THe Tennents of Nether-horseburgh having Suspended these two Ministers upon double Poynding they alleadged they had made payment bona fide of their Rents conform to their Tacks It was answered that they were called to Mr. Heugh Grays Decreet in anno 1656. and Charged thereupon thereafter the same year which did put them in mala fide It was answered that there having nothing followed upon the Charge but the Charger being silent for fifteen years the Tennents favore rusticitatis cannot be thought to continue in mala fide all that time to infer double payment else it might continue for fourty years It was answered once in mala fide ay in mala fide and that thir Tennents did still remember and suspect the Pursuers Right appears because they took Discharges bearing warrandice of the same The Lords ordained the Defenders to produce their Discharges that the warrandice might appear being loth to decern the Tennents in double payment if the Charge could have access to the other Minister or his Representatives It was alleadged for the present Incumbent of Innerkeithing that in a former double Poynding raised by the Tennents he was preferred to the Cropt 1665. and in time coming It was answered that the said Decreet was in absence of Mr. Heugh Gray and that it was null without Probation for there was nothing produced for the Minister of Innerkeithing but his Presentation and Collation which were but meerly general and nothing produced to Instruct that their Teinds were of his Paroch or within his Benefice It was answered that he was secured by the Act of Parliament anent Decreets of double Poynding The Lords found that what the Minister of Innerkeithing had uplifted by vertue of that preference the Act of Parliament would secure him thereanent but found he had no Right as to the future Iohnstoun contra Cuninghame Iune 19. 1667. JAmes Iohnstoun as Assigney by William Iohnstoun to a Bond granted by Iames Cuninghame Charges him thereon he Suspends upon this Reason that the Bond bears the sum borrowed from William Iohnstoun and his Spouse and payable to them the longest liver of them two and their Heirs there being no Children betwixt them the one half must belong to the Heirs of the Wife to whom the Suspender is Curator and which he ought to retain for their use and albeit in such Clauses in Rights of Land or Heretage potior est conditio masculi yet it is not
as the King of Sweden is not to be Retrenched nor Limited but by the exceptions contained in it self and in it there is no such exception but generally the Pass as is there qualified excludes all search or question of Men or Goods which is also the Kings meaning which appears expresly by the foresaid Letter which albeit it could not Derogat from a privat Right yet may well clear the dubious interpretation of a Treaty and is sufficient in this Case where the King alone dat leges bello The Lords upon consideration of the last Dispute did ordain the President to state the Case and represent it by the Secretary to the King both as to the meaning of the Treaty and the Letters and specially whether Counterband Goods not being the Growth of nor Loaden in Sweden were priviledged to the Swedes thereby November 6. 1667. THe said Cause being again called the President presented the Lord Secretaries Letter bearing the Kings Answer that the Treaty or Letter did not warrand the Swedes to carry Counterband Goods to the Countrey of his Enemies except their own Countrey Commodities Loaden within their own Dominions Whereupon The Lords sustained the Admirals Decreet as to that Reason of Reduction but gave the Parties a time to be further hear'd before Exâ—ract hendâ—â—Hendâ—â—son contra Henderson November 14. 1667. HEnderson insisted in the Cause mentioned Ianuary 31. 1667. which was again fully Debated above and it was alleadged that the Writ in question was a Testament or at least donatio mortis causa or at least a Conditional Donation to take effect only in case the Disponer died before he returned so that his simple returning without any further purified the Condition and made it null The Lords having considered the Writ found that albeit it was not formal yet it had the Essentials of a Disposition and Donation interviros and that it was not null by the Disponers return unlesse he had revocked it for they found that the words being that he Nominat and Constitute Henderson his Heir and Successor and Donatar irrevockably to certain Tenements in particular with power to him in case the Disponer returned not to enter by the Superior and Enter to Possession and transferring all Right he had in that case which words Constituting him Donaâ—ar they found were Dispositive words and Effectual and the adding of Heir and Successor could not Evocuat the same and found the Condition of his not returning was not annext to the Dispositive words but to the Executive Clause of Entering by the Superior and taking Possession which was cleared by the Posterior Reservation to recal it after his return It was further offered to be proven that the Disponer not only returned but recalled the Disposition in so far as he had it in his own hands and power after his return It was answered that it was no way relevant unlesse the Delivery of it hoc intuitu were proven for he might have had it in his hands upon many other accounts It was answered that the very having of the Writ did presume that it was Delivered unlesse the other Party would offer them to prove that it came in his hands alio nomine Which the Lords found Relevant Thereafter it was alleadged that as the Disponers having of it presumed Revocation so the Acquirers having of it hereafter presumed a passing from that Revocation and a Reviving of the Right and now it is in the Acquirers hands as to this point the Parties did not Debate but it occurred to the Lords that the Disponers having might be sufficient to infer Delivery but would not infer that the Acquirers having thereafter would presume passing from the Revocation because the Clause reserving to the Disponer a power to Recal made the naked Recovery of the Writ sufficient to him and did annul it but it was more dubious what was requisit to revive it whether naked Having or expresse Delivery hoc intuitu or if something were not requisite in Writ and therefore before answer to that point The Lords ordained the Pursuers who now had the Writ to condescend and prove how they got it Iames Maxwel contra Adam Maxwel November 15. 1667. JAmes Maxwel and the Umquhil Lady Hiltoun his Spouse having Disponed their Land to Adam Maxwel Iames now pursues a Declarator of Trust whereupon the Lords formerly ordained Compt and Reckoning that it might appear what Adam had Expended upon the accompt of the Trust. In which Accompt Adam gives up certain Bonds by Iames whereunto he had taken Assignation against which he could alleadge no more then what he truely payed out in respect the time of the Assignation he was intrusted by the Pursuer The Defender alleadged non relevant unlesse it were alleadged he was intrusted to Compone for the Pursuers Debts but if it was only a Trust of his Land and not a general Trust of all his Affairs it could not reach their Bonds and albeit upon the account of Friendship or Charity the Defender might be desired to take no more then he gave there lyes no Obligation in Law or Equity upon him so to do but he may demand what the Creditors his Cedents or any other Assigney might demand The Pursuer answered that the intent of his Trust in his Lands being to preserve him from the rigour of his Creditors it was against that Trust to the Trusty to use the same rigour himself Which the Lords found relevant and ordained Adam only to get allowance of what he payed out Laird of Culteraes contra Silvester Chapman November 16. 1667. CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Merks subscribed by the initial Letters of the Defenders Name The Lords sustained the pursute the Defender being in use thus to subscribe and that he did subscribe this Bond the Notar and three Witnesses insert being Examined they proved the Defenders custom so to subscribe but as to the Actual subscribing of this Bond two were affirmative and two were negative denying their subscription Deponing that they remembred not they saw the Defender subscribe The Pursuers own Oath was also taken ex officio who affirmed the truth of the subscription and that the Witnesses insert were present the question arose whether the verity of the subscription were proven The Lords found that it was sufficiently proven the Pursuer being a man above all suspition and no improbation proponed Chalmers and Gardner contra Colvils Eodem die CHalmers and her Children pursues Hugh Colvil and others for Ejecting them out of their House and Lands of Lady kirk and spuilzy of their Goods therein the Lybel being admitted to Probation not only a Witnesse Deponed that he saw the Defender open the Pursuers Doors they being absent in Edinburgh and the Keys with them and cast out their Goods and enter in Possession who was admitted cum nota as being Interessed as Tennant and concurring with these Pursuers in a pursute with the same Defenders before the Council upon the
same Ground the rest of the Witnesses proved that the Pursuers were in possession at or about the time Lybelled and that they went to Edinburgh and Locked their Doors and took away the Keys and some of them Deponed that the night before the Defenders Entry they saw the Doors Locked and that the next day after they saw Hugh Colvil and several others in the House and several Goods that were in the House cast out of the Door and that Hugh continued in Possession and took in the Goods again Which the Lords found sufficient to prove the Ejection and Spuilzie seing the Defender did not instruct that he entered by Authority of Law The Defender alleadged at Advising the Cause that the Pursuer had a Husband who within this Moneth was seen at Air and offered to prove by his Oath that he had Ceded the Possession being Warned and gave Warrand to the Defender to Enter and therefore he being Dominus bonorum his Wife and Bairns had no Interest to pursue and though they had his Oath was sufficient to instruct the Lawfulness of the Defenders Possession and that the Wifes Oath in litem could not be taken to Esteem her Husbands Goods It was answered that it was notourly known that the Husband had been two years out of the Countrey and having gone to Sea was commonly repute dead and therefore the Wife being in Natural Possession might lawfully pursue this Action neither was it relevant that the Husband promised to quite the Possession which being but an obligation could not warrand the Defender brevi manu to cast them out unless he had been present or consented to the Entry or had given a Renunciation of his Possession with a Warrand to Enter brevi manu The Lords in respect both Parties acknowledged that the Husband had been a great while absent found the Action competent to the Wife and found that the Husbands Ceding the Possession as was alleadged was not relevant and ordained the Wifes Oath as to the quantity and value of the Goods Spuilzied to be taken and granted diligence to the Defender to Cite the Husband if they could find him to the same Dyet to give his Oath reserving to the Lords what the Wifes Oath could work as to the estimation of the Goods without the Husbands Oath White-head of Park contra Iohn Stratoun Eodem die WHite-head of Park pursues Iohn Stratoun for restitution of an Horse which he delivered to his servant to be put in the Park of Holy-roadhouse to the Grass and which now cannot be found The Defender alleadged that he was lyable for no Loss or Hazard because at that time and long before there was a placad fixed upon the Port of the Park that he would be answerable for no Hazard or Loss of any Horse put in there by Stealling or otherwise which was commonly known at and long before that time It was answered that this Action being founded upon the common ground of Law nautae caupones stabularij ut quae receperint restituunt the same cannot be taken away but by paction and the putting up of a placad is no wayes sufficient nor was it ever shown to the pursuer The Defender answered that the Pursuer having only delivered his Horse to his Servant to be put in the Park without any express communing or conditions it behoved to be understood on such Terms as was usual with others which were the Terms exprest in the placad Which the Lords found relevant unlesse there had been a special agreement in which case they found the Defender or his Servant should have showen what was in the placad Executors of Isobel Trotter contra Trotter November 20. 1667. GEorge Trotter and Iames Lundy his Cautioner having granted a Bond of 636. pounds to Iohn Trotter and the same being Assigned to Isobel Trotter and Confirmed by her Executors they pursue Lundy who alleadged Absovitor because he offered him to prove that the Bond was granted blank in the Creditors Name to Iames Trotter Father to the said Isobel who filled up the Name of Iohn Trotter his Brother therein and took an Assignation thereto in Favours of Isobel who was then in his Family having no Means of her own and therefore it is in the same case as if it were a Bond of provision granted by the Father to the Daughter or taken in her Name which may alwayes be discharged by the Father or altered by the Father at his pleasure and true it is that the Father Submitted the same and was Decerned to Discharge the same which is equivalent to a Discharge It was replyed albeit Bonds of provision to Children be alterable by their Fathers before any thing follow yet if they be delivered to the Children or which is more if they be Registrate they become the Childrens proper Right and cannot be recalled Ita est this Bond though it had been blank ab origine it was filled up in Iohn Trotters Name and filled up before the Submission yea Isobel was dead and the Sum confirmed in her Testament so that her Father could not Discharge it proprio nomine or as his Administrator It occurred further to the Lords that albeit the Bond was Registrat the Assignation granted to the Daughter was not Registrat so that if that Assignation remained still in the Fathers power the case would be alike as if it were a Bond of provision taken originally in the Daughters Name yet this not being pleaded by the Parties And that the Asignation was Intimat that it was not constant that the Assignation remained in the Fathers hands The Lords repelled the Defense in respect of the reply Colonel Seatoun contra the Laird of Balwhilly November 22. 1667. THe Laird of Balwhilly having seased upon a Ship belonging to the Dutch during the War Colonel Seatoun Governour of the Fort at Brassie sound medled with the Ship and Loadning brevi manu for the use of the Garison Balwhilly pursues a Spuilzie before the Admiral Colonel Seatoun gives in a Bill of Advocation on this Reason that Balwhilly having no Commission albeit he did sease upon the Ship yet it belongs to the King and the Colonel had a Warrand from the Lord Commissioner to Intromet therewith for the Garisons use and therefore in the Cause concerning the King His Majesties Advocat and Officers were not obliged to answer before the Admiral nor could they attend there and therefore the Advocation ought to be past It was answered that the Reason was in causa and not relevant for the Advocat ought to have a Depute before the Admiral which is a Supream Court and Process maritime in the first instance ought not to be Sustained before the Lords and that whatever they pretended in the poynt of right Spoliatus est ante omnia restituendus The Lords having heard the Parties upon the Bill in presentia ordained the same to be past It was then desired that as before the Admiral the Colonel behoved to find caution not only judicio
Decreet of Locality because after the said Decreet a part of the Paroch of Gordoun was dismembred and Erected in a new Paroch and the Earl of Home burdened with a new Stipend and the Minister of Gordoun Liberat of a great part of his Charge in consideration whereof the Minister then incumbent quite a Chalder of his Decreet of Locality and aquiesced in the rest without ever Demanding any more and so did his Successors now by the space of sixteen or twenty years The Charger answered that his Predecessors forbearance to Lift that Chalder cannot instruct his Consent and though he had expresly Consented he could not prejudge his Successor unless that Chalder had been applyed to the new Kirk by Sentence of a Judge The Lords found the foresaid Reason relevant against the Pursuer in possessorioâ— ay and while he declare his Right here it was represented that the Minister had a sufficient Stipend beside the Chalder in question Mr. Rodger Hog contra the Countess of Home December 11. 1667. MAster Rodger Hog Insisting in his Reduction mentioned yesterday upon his Inhibition the Countess of Home alleadged that she had Right from Appryzers who would exclude the Pursuers Right and Inhibition and would Defend her self thereupon and not suffer her Right to be Reduced ex capite Inhibitionis and might thereby exclude the Pursuer from any Interest It was answered that the Reduction being only upon an Inhibition there are no Rights called for but Rights posterior thereto and it cannot prejudge any prior Right which the Pursuer is content shall be reserved Yet the Lords Admitted the Defender to Defend upon any prior Right that might exclude the Pursuers Right Hunter contra Wilsons December 13. 1667. HVnter having Charged Wiâ—sons for payment of 500 Merks contained in their Bond they Suspended on this Reason the Bonds bears expresly that the same should not be payed till the Suspender be put in Possession of a Tenement of Land in Glasgow for a part of the price whereof the Bond was granted Ita est they neither were nor can be put in Possession because the House was burnt in the Conflagration in Glasgow It was answered non relevat because after perfecting the vendition peculium est emptoris and therefore this being an accidental Fire wherein the Seller was no wayes in culpa nor in mora in respect that at that time there was a Liferenter living whose Liferent was reserved in the Disposition It was answered that albeit in some cases the peril be the Buyers yet where there is an expresse obligement that no payment shall be until Possession by that expresse Paction payment cannot be sought It was answered that the Buyers had taken Possession after the burning and had built the House It was answered that the Possession of the Ground cannot be said the Possession of the House Terra non est Domus and therefore this being but a small part of the price in such a calamitous Case the Suspenders ought to be Liberat thereof Notwithstanding of all these Alleadgeances the Lords found the Letters orderly proceeded here the Buyer was Infeft before the burning and did voluntarly take Possession after the burning Robert Hamiltoun Clerk contra Lord Balhaven December 14. 1667. THe Lord Balhaven having Disponed the Barony of Beill to Iohn Hamiltoun Son to Robert Hamiltoun Clerk reserving Roberts Liferent with power to dispose of fouâ—ty Chalders of Victual at his pleasure and to set Tacks for what time and Duty he pleases and containing an express Provision that it shall be leisum to Robert to do any Deed in Favour of my Lord Balhaven and that the Fee shall be burdened therewith and it is Provided that all Rights Robert shall Acquire shall accresce to his Son who is to Marry Balhavens Oye and failzying of the Sons Heirs mentioned in the Disposition Robert and his Heirs are in the last Termination Thereafter Robert enters in a Minut with my Lord Balhaven by which he is obliged to Accept an hundreth twenty nine thousand Merks and therefore obliges himself and as taking burden for his Son and as Tutor and Administrator to him validly and sufficiently to Denude himself and his Son of their Rights to any that he should Nominat but here is a Clause irritant that if Money or sufficient Persons to grant Bond to Robert be not delivered to Robert at Lambmass last and Payment made of the Money at Martinmass last that the Right by the Minute should expire ipso facto without Declarator The Minute was put in the Duke of Hamiltouns Hand that if these Terms were not performed he should Cancel it Robert Hamiltoun Pursues now a Declarator against Balhaven concluding that he hath an absolute and irredeemable Right to the Land by his first Disposition and Infeftment granted to him and his Son and that the Clause irritant is Committed and that thereby the Minute is null and concludes against the Duke that the Minut was put in his Hands upon the Terms foresaid and that he ought to Cancel or Deliver the same the Dukes Advocats suffered him to be holden as Confest but did not produce the Minute It was alleadged for Balhaven no Process till the Minute were produced for it could not be declared null till it were seen It was answered that the Copy of it was produced and verbatim insert in the Lybel and the Pursuer craved the Minute in the Terms Lybelled to be declared null without prejudice to any other Minute if they could pretend it The Lords ordained Processe but ordained the Pursuer before Extract to produce the principal Minute It was further alleadged for Balhaven Absolvitor because the Minute being mutual there could be no failzie in the Defender because the Pursuer neither was nor is able to perform his part of the Minute in respect the Fee of the Estate is in the Person of the Son who cannot be Denuded by any Deed of the Father for as Legal Administrator he hath no power neither can any Father or Tutor Denude a Pupil of their Fee but there must be interposed the Authority of the Lords in a special Process instructing a necessar Cause for the Minors Utility which cannot be in this Case and though the Father could Denude the Son as he cannot yet he is Minor and may Revock and yet it was offered to fulfil the Minut if the Pursuer would Secure the Defender against the Minors by real Security or good Caution The Pursuer answered that the Defense ought to be Repelled because the Defender the time of the Minut knew his Right and his Sons and cannot pretend an impossibility to have made any such Minut upon a ground then palpable and known and yet contend to keep the Minut above the Pursuers head but he must either take it as it stands or suffer it to be declared void 2dly The Pursuer is in sufficient Capacity to Denude his Son by the foresaids Reservations contained in the first Disposition whereby he has full
power to Dispose of fourty Chalders of Victual and also power to do any Deed he pleased in favours of Balhaven and there could be no Deed more rational then to give a Reversion of his own Estate upon payment of all that the Pursuer had payed to him or for him The Defender answered that this general Clause cannot be understood to be prejudicial to the substance of the Disposition and special Clauses in favours of his Son and the Defenders Oye and their Successors The Lords Repelled the Defense and declared but of consent of the Pursuer superceded to Extract for a time and appointed two of their Number by whose sight the â—ursuer and his Son should be Denuded and the Defender Secured so that it came to no Debate whether such a Clause irritant as this in a Reversion of that which was truely Bought and Sold irredeemably before and no Wodset could be purged Iohn Campbel contra Constantine Dougal Eodem die COnstantine Dougal having granted a Bond to Iohn Houstoun bearing that Iohn for himself and as Administrator for his Son Constantine Campbel had Lent the sum and that the same should be payable to the Father he being on Life and failzieing him by Decease to be payable to Constantine his Son as being his own proper Moneys and to his Heirs or Assigneys Constantine Assigns this Bond to Iohn Campbel who having pursued Exhibition thereof and it being produced insists for Delivery It was alleadged for the Producer that it ought to be Delivered back to him because he had right thereto by Assignation from Iohn Houstoun who in effect was Feear of the Sum it being Lent to him and payable to him during his Life and Constantine his Son was only Heir substitute as is ordinarly interpret by the Lords in such Bonds or Sums Lent by Fathers to be payable to themselves and after their Decease to such Bairns 2dly The Father aâ— lawful Administrator to his Son might have Lifted the Sum in his Sons Minority and therefore he might Assign the same The pursuer answered to the first that albeit Bonds for Money Lent by Parents payabâ—e to themselves and such Children after their Death be so interpret that the Fathers are Feears yet that is only where the Sums are the Parents own but this Sum is acknowledged to be the Sons own Money bâ— the Bond it self 2dly Albeit the Father as lawful Administrator might have Lifted the Sum yet cannot Assign because that is no proper Act of Administration comâ—â—tent to Tutors or Administrators and Executors may uplift Sums and yet cannot Assign The Defender answered to the first that the Money is Lent by the Father not only as Administrator but bears expresly for himself and that these words as being his own Money did not sufficiently prove that it came not from the Father but that after the â—athers Decease it would be the Sons Money To the second that the conception of the Bond being expresly to pay to the Father warranted him to Assign and the Assignâ—y being his Procurator might Lift as well as he the same way as Assigneies can Lift during the Executors Life The Lords found the conception of the Bond to constitute the Son to be Feear and that at leâ—st the words as being the Sons own Moneys presumed the same to have been so ab initio unless it were positively proven that the Money when Lent was the Fathers and found that the Fathers Assignation as lawful Administrator could not exclude the Son but that point whether the Deâ—tors paying to the Fathers Assigney during the Sons Pupillarity or Minority was neither positively alleadged by the Parties nor considered by the Lords Iames Paterson contra Homes December 17. 1667. JAmes Paterson having Charged the Earl of Home in anno 1662. for payment of a Sum due by his Bond. The Earl suspended and found one Brunt-field Cautioner and at the foot of the Bond of Caution Home of White-â—ig Attested the Cautioner in these Terms viz I Attest the Cautioner to be sufficient and subscribes the same which is Registrat with the Bond it self and the Extract produced bearing the same The Suspension being Discust against the Earl of Home and the Cautioner Charged with Horning Paterson pursues the Attester subsidiary for payment of the Debt It was alleadged for the Defender Absolvitor because he having but Attested the Sufficiency of the Cautioner can be holden no further then a Witnesse and so can only be found lyable if his Testimony were found false or that ex dolo he had Attested a person to be sufficient not according to his Judgement but either contrair to his knowledge or without knowledge of his Condition at least his Attesting can only oblige him to prove that the Cautioner when he Attested him was holden and repute a person sufficient for the Sum and that he had a visible Eâ—â—aâ—e in Land Bond or Moveables The Pursuer answered that the Attester behoved to be lyable to him because ejus facto by the Attestation the Suspension was obtained and the Principal being dead without any to represent him and the Cautioner insolvendo the Atâ—ester is obliged de jure to make up the Damnage falling out by his Deed. The Lords found the Alleadgeance for the Attester relevant viz. that the Cautioner was holden and repute sufficient for such a 〈◊〉 at the time of the Attest to be proven prout de jure Lord Abercromby contra Lord New-wark Eodem die THe Lord Abercromby having Sold to the Lord New-wark the Barony of St. Ninians there was a fitted Accompt subscribed by them both in anno 1647. Containing the Sums payed by New-wark and at the foot thereof concluding thirty seven thousand Merks to be Due but there is no mention made of the Instructions in the Accompt the second Article whereof bears payed to Abercrombies Creditor 30. thousand Merks whereâ— upon Abercromby alleadges that seing the Accompt bears not the Delivery of the Instructions that New-wark at least must produce the Instructions of this Article which is general for the Bonds of these Creditors are yet above Abercrombies Head and New-wark makes use of some of them to exhaust the thirty seven thousand Merks Bond at the foot of the Accompâ—â—â— It was answered for New-wark that after 18. years time that he was not obliged to Compt again but the foot of the Accompt being subscribed by the Pursuer beaâ—ing 37. thousand Merks to be only Resting was sufficient to Exoner him and the not mentioning of Instructions Delivered cannot presume or prove against him that they are in his hand else the Accompt signifies nothing and he must not only Instruct this Article but all the rest neither did he make use of any Bonds to exhaust the foot of the Accompt but such only for which Precepts were direct to him after the Accompt The Lords found the Defender not lyable to Compt or produce the Instructions of any of the Articles unless it were proven by his Oath or
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
Lands of Vdney whereunto their is an expresse Reservation in Favours of his Father to Dispone Wodset and grant Tacks and therefore any Deed done by his Father behoved to affect him at least the Fee of the Estate so that albeit this Letter be posterior to the Disposition of the Estate it must Burden the same and the Defender quoad valorem 2dly The Letter produced acknowledges a Wodset and payment made and it is offered to be proven that the Letter was anterior to the Disposition of Vdney so that by the Receipt of the Wodset Sums the Defunct was by the Nature and Tenor of the Rights of Wodset obliged to Resign in Favour of the Pursuer and therefore the Defender Succeeding to him by this Disposition after that obligement to Denude himself upon payment is obliged as Successor titulo lucrativo post contractum debitum to Denude himself and that the Wodset was prior to the Disposition of Vdney was offered to be proven The Defender answered that the provisions in his Infeftment could never affect him nor the Estate because there was nothing in the provision that the Estate should be lyable to the Debts contracted by the Defunct thereafter but only that he might Dispone or Wodset or Redeem for an Angel and it cannot be subsumed that the Letter produced doth import any of these but at most a personal obligement 2dly Albeit it were notour that there had been such a Wodset before the Defenders Disposition of his proper Estate yet it behoved to be also instructed that it was payed before that Disposition but his Fathers Missive after his Disposition could never instruct that it was payed or payed before and yet the Defender offered to Renunce all Right he had to the Wodset Lands or to suffer an Certification and Improbation to passe against the same seing they are not extant or produced or to consent that the Lords would declare upon the Letter that the Wodset thereby was Redeemed and Extinct which last the Pursuer would have accepted providing the Defender would give a Bond of Warrandice for his Fathers Deed and his own which the Defender refused The Lords proceeded to determine the Point in jure and as to that Point anent the provision in the Defenders Infeftment some were of opinion that any Debt contracted by the Father would affect the Estate others thought not there being no provision to contract Debt but to Wodset or Dispone which was not done and all agreed that the Case being new and now very frequent required a more accurat Debate but the Lords found that the Defenders Father having by his Letter acknowledged the Wodset and the payment thereof to which Wodset the Defender had no Right that any grant of Redemption by the Father after his Disposition to his Son was probative against the Son and that the Letter being proven Holograph did instruct the Wodset to be payed and therefore sound it relevant to the Pursuer to prove that the Wodset was before the Defenders Disposition and that it did import a conditional obligement that the Father should Resign upon payment and that the Sons Disposition being after the Wodset he was lucrative Successor after that obligation contracted by the Wodset Captain Strachan contra George Morison Ianuary 17. 1668. CAptain Strachan having obtained Decreet before the Admiral against George Morison for wrongous Intromission of a Loadning of Wine belonging to the Pursuer in anno 1638. which was brought home by him in the Ship called Stulla whereof he had an eight part and the Defenders the rest and the Pursuer being Skipper did upon his own Credit buy the Wine and having brought it home the Ship was broken at Newburgh and Loadning was medled with by the Defenders whereupon they are Decerned to pay conjunctly and severally George Morison raises Reduction on two grounds first That the Decreet was unjust in so far as the Defenders were Decerned in solidum each for the whole 2dly That there was no probation of any of their Intromissions but upon the Testimony of one Witnesse and Captain Strachans own Oath taken in Supplement It was answered to the first Reason that the whole Intrometters were justly Decerned in solidum first Because this was in it self a Spuilzie and albeit the Defender did not insist within three years yet he ought not to be excluded because he was in the Kings Service all the time of the trouble and fled the Countrâ—y at the time of this Intromission 2dly Because the prescription of the priviledge of Spuilzie is only in relation to violent profits and the Oath in litem and these are only lost if pursute be not within three years but the Parties being all lyable in solidum is not lost for the Intromission remaines still a wrongous Intromission and is not in the same case as a Vindication and Restitution of Goods in the Defenders hands without Violence or Vice and in many cases correi are lyable in solidum as Tutors or where the Intromission is joynt or promiscuous for it were against reason if there were many vitious Intrometters that the particular Intromission of each of them behoved to be proven which oft times is impossible as in the same case and likewise socij are lyable in solidum and here was a co-partnery betwixt these Parties It was answered for Morison that there was three years elapsed since the Kings Restauration before any pursute and though that had not been there is nothing that can stop that short prescription and therefore infancy or minority hinders not the course thereof and in this case the Decreet in question restricts to wrongous Intromission As to the second all the priviledges of Spuilzie are lost by the prescription and it was never found at any time that in wrongous Intromission the Parties were all lyable in solidum especially where the thing Intrometted with was divisible as Wines and as to the alleadged co-partinery there was nothing Lybelled thereon The Lords did not consider the poynt of co-partinery but found that in wrongous Intromission each Intromettor was not lyable in solidum but a joynt Intromission proven against many did inâ—er against each of them an equal share unlesse the Pursuer proved that they Intrometted with a greater share and found not a necessity to prove against each of them the particular quantity of their Intromission Walter Stuart contra Robert Acheson eodem die WAlter Stuart as being infeft in the Baronie of North-Barwick and being charged for the whole Taxation thereof Charges Robert Acheson for his Proportion according to the Stent Roll who Suspends on this Reason that his Interest is only Teinds which is only applyed to the Kiâ—k whereof he produces the Bishops Testificat and therefore by the exception of the Act of Convention he is free The Charger answered non relevat because the Suspender ought to have conveened at the Dyet appointed by the Act of Convention for making of the Stent Roll and there have instructed that his
payment of a Debt due to him by a Person Incarcerat in their Tolbooth who escaped The Defenders alleadged no Processe till the Magistrats who then were especially Bailly Boyd by whose Warrand the Rebel came out be called 2dly The present Magistrats cannot be lyable Personally having done no Fault neither can they be lyable as representing the Burgh at least but subsidiarie after the Magistrats who then were in culpa were Discussed now after six or seven years time The Pursuer answered that the Prison being the Prison of the Burgh the Burgh was lyable principaliter and if only the Magistrat doing the Fault were lyable the Creditor might oftimes loose his Debt these being oftimes of no Fortune or sit to Govern and the Town who Choiseth them is answerable for them neither is the Pursuer obliged to know who were Baillies at that time or who did the fault and so is not bound to Cite them The Lords Repelled the Defences and found the present Magistrats as representing the Town lyable but prejudice to them to Cite them who did the Fault Robert Ker contra Henry Ker February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son for 3000. Merks of borrowed Money and 3000. Merks of Portion for which Sum he did Infeft him in an Annualrent of 240. Pound yearly Suspending the Payment of the one half of the Annualrent till his Death whereupon Robert pursues a Poinding of the Ground It was alleadged for Henry Ker the eldest Son who stands now Infeft in the Lands Absolvitor because he stands Infeft in the Lands before this Infeftment of Annualrent being but base took effect by Possession The Pursuer answered first That the Defenders Infeftment being posterior and granted to the appearand Heir without a Cause Onerous it is perceptio Haereditatis and if the Father were Dead it would make the Defender lyable as Heir and therefore now he cannot make use thereof in prejudice of the Pursuer 2dly The Pursuer offered to prove that his Annualrent was cled with Possession before the Defenders Infeftment in so far as he Received the half of the Annualâ—ent which is sufficient to validat the Infeftment for the whole seing there are not two Annualrents but one for the whole Sum and seing the 〈◊〉 could do no more the one half of the Annualrent being Suspended till his Fathers Death The Lords found this second Reply relevant and found the Possession of the half was sufficient to validat the Possession for the whole but superceded to give answer to the former Reply till the conclusion of the Cause not being clear that the Defense upon the Defenders Inseftment could be taken away summarly though he was appearand Heir without Reduction upon the Act of Parliament 1621. Mr. George Iohnstoun contra Sir Charles Erskin February 6. 1668. THe Lands of Knockâ—â—â— being part of the Lands of Houdon did belong to Umquhil Richard Irwing Umquhile Mr. Iohn Alexander Minister having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands he did Appryze the same from Robert as specially Charged to enter Heir but Robert died before he was Infeft or Charged the Superior Sir Charles Erskine hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands and thereby having Right to Mr. Iohn Alexanders Appryzing he is Infeft thereupon After Robert Irwings Decease his Sisters served themselves Heir to Richard their Grand-sir and are Infeft do Dispone to Mr. George Iohnstoun who is also Inseft Mr. George pursues for Mails and Duties in the Name of Irwings his Authors Compearance is made for Sir Charles Erskine who alleadged Absolvitor First Because he hath been seven years in Possession of the Lands in question by vertue of Mr. Iohn Alexanders Appryzing and his own and so is tulus exceptione in judicio possessâ—rio and cannot be quarrelled till his Right be Reduced 2dly He is potior jure and his Right must exclude the Pursuers because he having Right to Mr. Iohn Alexanders Appryzing which was Deduced against Robert Irwing as specially Charged to enter Heir so Richard as to him is in as good case as Robert had been actually Entered and Infeft by the Act of Parliament declaring that when Parties are Charged to enter Heir and lyes out sicklike Processe and Execution shall be against them as they were actually Entered likeas the Tenor of the special Charge introduced by Custom to perfect the foresaid Act of Parliament bears expresly that the Person Charged shall enter specially and obtain himself Infeft with Certification that the user of the Charge shall have the like Execution against him as if he were Entered and Infeft and therefore Mr. Iohn Alexanders Appryzing against Robert Iâ—wing so Charged was as effectual to him as if Robert had been actually Infeft in which case there is no question but the Appryzer might obtain himself Infeft upon the Appryzing after the Death of him against whom he Appryzed and that summarly without new Processe and there is no difference whether the Superior were Charged during the Life of the Debtor or not The Pursuer answered to the first that no Party can claim the benefit of a Possessory judgement unlesse he have a real Right by Infeftment at least by Tack but a naked Appryzing thoug it may carry Mails and Duties as a naked Assigation and is valide against the Debtor or his Heir â—et in it self it is an incompleat Right and not become real It was answered that the Appryzing alone was sufficient as was lately found in the Case of Mr. Rodger Hog against the Tennent of Wauchtoun The Lords repelled the first Defense and found there was no grond for a Possessory judgement here there was neither Infeftment nor Charge upon the Appryzing The Pursuer answered to the second Defense that it was not relevant to exclude him because Richard Irving having Dyed last vest and seised in the Lands and Robert Irving never having been Inâ—eft the Pursuers Roberts Sisters who were Heirs appearand buth to Richard their Grand-sir and Robert their Brother could not possibly obtain themselves Infeft as Heirs to their Brother becuse the Inquest could not find that Robert Dyed last vest and seised as of Fee but Richard and any Appryzing against Robert who was never Infeft evanished seing no Infeftment was obtained upon the Appryzing nor no Charge used against the Supperior during Roberts Life so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard and ought to have Appryzed from them as lawfully Chaged and to have obtained Infeftment upon the Appryzing in their Life and as the Sisters would exclude the imperfect Diligence against the Brother so much more may Mr. George Iohnstoun who is their singular Successor It was duplyed by the Defender that Mr. George Iohnstoun albeit he be singular Successor yet he is Infeft after Sir Charles Erskin and therefore the question now is only betwixt the
or out of any other the Canons Portions of this Kirk George Shein contra Iames Christie Eodem die G Christison of Bassallie gave an Infeftment to his eldest Son of the Lands of Bassallie and to his second Son of an Annualrent of 86. merks forth thereof both of one date and both reserving the Fathers Liferent Iames Christie hath Right by Appryzing led against the eldest Son in his Fathers life to the Lands George Shein hath Right by Adjudication against the second Son to the Annualrent and pursues a poinding of the Ground It was alleadged for Iames Christie that Sheins Authors Right was base never cled with Possession and so null whereas his Right was publick by an Appryzing and had attained to Possession It was answered that the Fathers Liferent being reserved the Fathers Possession was both the Sons Possession and did validat both their Rights It was answered that a Disposition by a Father to his own Children reserving his own Liferent though Infeftment follow is alwayes accounted simulat and never accounted cled with Possession by the Fathers Possession as hath been frequently decided It was answeredâ— that albeit in Competition betwixt base Infeâ—tments granted to Children and Infeftments granted to Strangers upon onerous Causes the Childrens Infeftment though prior and though reserving the Fathers Liferent uses to be preferred yet here that holds not for both Infeftments are granted to Children both of one date and neither of them to Strangers or upon onerous Causes and therefore the Reservation here is without suspition of Simulation and the Fathers Possession must both validat the second Sons Annualrentâ— and the eldest Sons property Which the Lords found Relevant and that the Fathers Possession by this Reservation did sufficiently validat both the Sons Infeftments and that the Possession of one after his Death or of any succeeding in his Right did not exclude the other or his singular Successor Mr. Robert Burnet contra Swane Eodem die MR. Robert Burnet Tutor of Lâ—yes pursues for Mails and Duties of a Tenement in Aberdene It was alleadged for Swane the Defender Absolvitor because he stands Infeft in the Lands and by vertue of his Infeftment in Possession and albeit the Pursuers Infeftment be prior it is null neither being Registrat in the Register of Seasins nor in the Town Clerks Books of Aberdene according to the custom of all Burghs but hath been latent many years and no vestige of it in the Town Books so that the Defender was in bona fide to Contract with the common Authour and Apprize thereafter It was answered that the Act of Parliament excepted Seasins within Burgh and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal or Record Which the Lords found Relevant and sustained the Seasine Colquhoun and Mcquair contra Stuart of Barscub Iuly 1. 1668. THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair to be holden of himself in the Contract of Alienation there is a special Clause that because the Lands are holden Ward of the Duke of Lenox therefore Barscub is obliged to relieve these Feues of any Ward that shall fall in time coming Thereafter Barscub Dispones the Superiority of these Lands and by the Death of his singular Successor his Heir falls in Ward whereupon Sentence was obtained against the Feuars for the Ward Duties and the avail of the Marriage and they now pursue relief against Barscubs Heir upon the Clause of Warrandice above-written The Defender alleadged that the Libel was no ways Relevant to infer warrandice against him upon the said Clause because the meaning thereof can only be that he as Superiour and so long as he remained Superiour shall relieve the Feuars which ceases he being now Denuded of the Superiority otherwise it behoved to have imported that he should never sell the Superiority without the Vassals consent which no Law doth require or if the Lands had been Appryzed from him he could not be lyable for the Ward of the Appryzers Heir which is cleared by the ordinary Custom there being nothing more frequent in Charters than Clauses of absolute warrandice and yet none was ever overtaken thereby after they ceased to be Superiours The Pursuer answered that his Libel was most Relevant because this being an Obligement conceived in their favours by Barscub not qualified as Superiour no Deed of Barscubs without their consent can take it from them unless Barscub when he sold the Superiority had taken the new Superiour obliged to receive the Vassals with the same warrandice but now the new Superiour not being obliged by this personal Clause Barscub the old Superiour must remain obliged especially in a Clause of this nature which is express for all Wards to come The Lords Repelled the Defense and Sustained the Libel and found the Superiour albeit Denuded lyable for Warrandice Thomas Rue-contra Andrew Houstoun Iuly 3. 1668. ANdrew Houstoun and Adam Mushet being Tacksmen of the Excize did Imploy Thomas Rue to be their Collector and gave him a Sallary of 30. pound Sterling for a year thereafter he pursued Andrew Houstoun upon his promise to give him the like Sallary for the next year and in absence obtained him to be holden as confest and Decerned Which being Suspended he obtained Protestation and therefore raised Caption and apprehended Andrew Houstoun at Wigtoun who gave him a Bond of 500. Merks and got a Discharge and being Charged upon the Bond of 500. Merks he Suspends on these Reasons that Thomas Rue had granted a general Discharge to Adam Mushâ—t who was his Conjunct and coâ—reus deâ—endi afâ—er the alleadged Service which Discharged Mushâ—t and consequently Houstoun his Partner 2dly The Decreet was for Sallary and it was offered to be proven that Rue for his Malversation was by warrand from Ceneral Monk excluded from Collection that year and by the Discharge of the Decreet and this Bond both of the same Date and VVitnesses it did appear that this Bond was granted for the Decreet and if the Decreet were Reduced by the Reduction thereof depending the Bond would fall in consequence as granted for the same Cause The Charger answered that he was now not obliged to Dispute in relation to the Decreet First Because the Suspender had Homologat the same by taking a Discharge thereof and giving a Bond therefore 2dly There was not only a Homologation but a Transaction upon a Reference made by the Parties to â—aldone conform to his Attestation produced so that that Transaction cannot be recalled upon any pretence but is the most firm and Obligatory Contract of any The Suspender answered that his payment making and taking Discharge was no Approbation nor Homologation but that he might reduce the Decreet and repeat if he had payed or been poynded and so may retain especially seing it was done metu Carceâ—is he being taken with Caption and as to the Transaction he denies the same neither can it be instructed by Baldones Attestation but by the
spoke expresly of commodaâ—um estimatum to Transfer the peril on the borrower and there is no Law adduced to restrict it not to take place in that which is estimat only in the case of Deterioration ubi lex non distinguit nec nos and as to the meaning of the Clause in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse So this Bond being the Defenders words blame himself if he made not that clear The Defender answered that albeit that be one Rule of Interpretation yet there are others stronger making for him viz. In dubiis respondendum pro reo in dubiis pars mitior aequior sequenda Now it cannot be thought that Parties would have been so unreasonable as to have demanded Restitution if the Kingdom were lost and the Cannon taken after all Diligence done to keep them but this is the most special Rule In dubiis respondendum secundum naturam actus ant contractus The Lords found that by the Nature and Tenor of this Contract the Defenders were not lyable for this Accident that happened and that they were not in mora nor culpa but had done all Diligence and therefore found the Cannon lost to the Pursuer and Lender and Suspended the Letters simpliciter Thereafter upon pronuncing of the Interlocutor The Pursuer offered to prove by the Writter and Witnesses insert in the Bond that it was expresly Treated and Agreed and that the meaning of the Clause was that the Defender should be lyable to all hazard and desired the Witnesses at least to be Examined ex officio The Defender alleadged that the Pursuer having gotten a Term already to Examine Witnesses ex officio and the Parties being Examined he could not now demand a new Term neither could a clear Clause in a Bond be altered by Witnesses The Pursuer answered that the Clause was at best but dubious and so the meaning was not to prove against the Writ but to clear the same which is ordinar The Lords would not give any further Term for leading Witnesses but found that alleadgance only probable by the Oath of the Party Patrick Andrew contra Robert Carse November 25. 1668. PAtrick Andrew having sold twelve piece of Wine to Margaret Henderson who keeped a Tavern after she was Proclaimed to be Married to Robert Carse Flesher a part of which Wines was vented before the Marriage and a part thereof vented after the Marriage but the Marriage Dissolving within three or four Moneths by the Wifes Death the most part of the Wine remained unsold at her Death the Merchand pursued the Wife for the Price and the Husband for his Interest some dayes before she dyed after her Death her Husband vented no more of the Wine but caused the Magistrates Inventar the same and delivered the Keys to them Patrick Andrew who sold the Wine doth now pursue Robert Carse the Husband for the price of the Wines who alleadged Absolvitor because there was no ground in Law to make him lyable for his umquhil Wife her Contract and Obligement ex Empâ—o he being only lyable jure mariti which being Dissolved by her Death he is free for he is neither Heir nor Executor to her The Pursuer answered that the Husband having allowed the VVife to continue the Venting of the VVine she was thereby preposita negoliis mariti and thereby her medling must be the Husbands medling who must be lyable for the whole price especially seing he never made offer of the remaining VVine to the Pursuer though he knew his Interest and had pursued him for the price so that the VVines having perished it must be attribute to his fault and the Merchant who knew not the condition thereof cannot lose the same 2dly The Pursuer offered to prove that the Defender put in his own Nephew to be Taverner after he Married the VVoman 3dly The ground in Law that the Pursuer insists on against the Husband is in quantum lucratus est by his Intromission with the VVine and price thereof and any thing that has been lost through his fault is alike as he had been Profiter in the whole The Defender answered that he declyned not to be lyable in so far as he was Profited viz. for the price of the VVine Vented during the Marriage which he was content to refer to the Pursuers Probation how much was Vented then but he could not be lyable for what was Vented before the Marriage though after the Proclamation much less for what remained unsold after the VVifes Death neither was he in any fault by not offering the VVine to the Pursuer nor might he lawfully do the same because the Marriage Dissolving within year and day the propertie of the whole VVines returned to the VVifes Executors and nearest of Kin and the Husband had no interest therein as he would have had if the Marriage had continued year and day neither had the Merchant any right to the Wines the property whereof was in the Wife and her Executors but had only a personal Obligation for the price and therefore he could not deliver the Wine nor medle therewith without vitious Intromission so that he did the most exact Diligence by Inventaring and Delivering the Keys to the Magistrates so that there being ten piece of Wine then in the Celler the Defender could only be lyable for so much of two Piece as the Pursuer should prove sold during the Marriage The Pursuer answered that the Defender having once intrometted and medled with this parcel of Wine he is in so far lucratus and he can no more sever some Punsheons unspent from the rest nor one part of a Punsheon Vented from the remainder so that he can offer nothing back of the parcel re non intâ—gra nor can he alleadge that the whole ten Piece was of the Pursuers Wine because the Pursuer offered to prove that this Deceast Wife bought other Wine from other persons at that time and it were against Law and Reason to put the Merchand who is a stranger to prove what was Vented during the Marriage and how much of the Pursuers Wine remained after the Marriage for that was the Defenders part to enquire and not the Pursuers part who is a stranger The Lords found the Defender not lyable for that part of the Wine Vented before the Marriage nor yet for what remained unspent after the Wifes death seing he Inventared and abstained but they found the Husband obliged to prove both wat was spent before the Marriage and what of this Wine remained after the Marriage If the Pursuer proved there was other Wines in the Celler and so found the Defender lyable foâ— the whole except in so far as he proved was sold before the Marriage and remained after the Wifes Death The Daughters of Mr. James Mortoun Supplicant November 26. 1668. THe Daughters and Heirs of Mr. Iames Mortoun gave in a Supplication to the Lords making mention that the
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown
umquhil Moâ—ison of Darsie and Dam Nicolas Bruce now Lady Braid then his Spouse bearing Annualrent and a Clause stating the Principal Sum after ilk Term as a Stock to bear Annualrent and Termly Penalties in case of failzie This being called in praesentia It was alleadged for Kinghorne that Annual of Annual was a most Usurary Paction rejected by all Law and our Custom and cannot subsist in whatever Terms it be conceived otherwise by the like Paction the Annual of that Annual might bear Annual and so perpetually multiply and if this were Sustained there would never be a Bond hereafter in other Terms It was answered that Bonds of Corroboration stating Annualrents into Principals by Accumulation have ever been allowed and though that be done after the Annualrent is become due making it then to bear Annualrent there is no material difference to make it bear Annualrent by a paction ab ante but not to take Effect till the Annualrent be effectually due It was answered that Custom had allowed the stating of Annualrents after they were due into a Principal because then being presently due they might instantly be Exacted but Law and Custom hath rejected the other Case The Pursuer further alleadged that she being a Widow and this her Liveliehood Annualrent at least should be due for the Annualrents seing she is ready to Depone that she borrowed money to live upon and payed Annualrent therefore or otherwise the Termly Failzies ought to be Sustained The Lords Sustained the Defense and found no Annualrent due of the Annual nor Termly Failzies seing there was no Charge at the Pursuers Instance against this Defender and that he was a Cautioner but modified for all 100. pound of Expences Bell of Belfoord contra L. Rutherfoord Ianuary 27. 1669. BEll of Belfoord being Infeft in an Annualrent by the Deceast Lord Rutherfoord out of certain Lands pursues a poinding of the ground Compearance is made for my Lady Rutherfoord who alleadged she ought to be preferred as being Infeft in an Annualrent of 2000. merks yearly upon her Contract of Marriage before this Pursuer 2dly That she ought to be preferred for an Annualrent of 2000. merks yearly of additional Joynture wherein she stands also Infeft publickly and albeit her Infeftment be posterior to the Pursuers yet his Infeftment being base not cled with Possession before her publick Infeftment she is preferable The Pursuer answered that before the Ladies Infeftment on her additional Jointure he had used a Citation for poinding of the Ground and is now Insisting for a Decreet thereupon which must be drawn back to the Citation and is sufficient to validat the base Infeftment that it be no more from that time forth repute Clandestine Which alleadgance the Lords found Relevant and preferred the Pursuer to the Ladies additional Jointure It was further alleadged for the Lady that she was Served and kenned to a Terce of the Lands in question and must be preferred as to a third part of the profits of the Lands conform to her Infeftment upon her Terce The Pursuer answered that her Service Kenning and Infeftment of Terce are posteriour to his Infeftment of Annualrent and posterior to his Citation foresaid thereupon It was answered for the Lady that her Terce being a Right Constitute by Law by the Death of her Husband albeit it be Served and Kenned after these Acts are but Declaratory of her Right by her Husbands Death and do Constitute her Right not from the date of the Service but from her Husbands Death which is before the Pursuers Citation so that his Infeftment granted by her Husband before his Death not having been cled with Possession in the Husbands Life it remained at his Death as an incompleat Right which cannot exclude her from her Terce It was answered that a base Infeftment is of it self a valid Right although by a special Act of Parliament posterior publick Infeftments are preferred thereto unless the base Infeftment hath been cled with Possession which cannot be extended beyond the Terms of the Act of Parliament and so cannot be extended to a Terce but as the base Infeftment would have been a sufficient Right against the Husband and his Heirs so it must be esteemed as debitum reale affecting the Ground and his Lady can have no more by her Terce then the third of what was free unaffected before his Death The Lords found the base Infeftment sufficient to exclude the Terce pro tanto and that as to the Husbands Heir or Relict it was a sufficient Right Stirling contra Heriot Eodem die Stirling Son to Commissar Stirling pursues for a modification of an Aliment out of the Liferent of Helen Heriot his Fathers Wife as having the Liferent of the whole Estate The Lords Sustained not the Aliment in respect the Defenders Liferent was very mean and the Pursuer was major and keeped a Brewary and she kept one of his Children and that he was not frugi aut bonae famae Robert Brown contra Iohnstoun of Clacherie February 1. 1669. RObert Brown pursues Iohnstoun of Clacherie for payment of 1200. pounds contained in a Bill of Exchange subscribed before two subscribing Witnesses and marked with Clacheries hand there was several other Bills for greater Sums produced marked with the like mark and none compearing for Clacherie The Lords caused Examine the Witnesses insert who Deponed that Clacherie was accustomed so to Subscribe and one of them Deponed that he saw him put to this mark to the Bill in question several others Deponed that they had accepted such Bills in regard of his Custom and had obtained payment from him without any Debate thereupon The question arose to the Lords whether a Sum above an hundred pound could be proven by such a Writ that had only a mark and having demured upon it before till they should try if any such case had been Sustained formerly and none having been found Sustaining any Writ not being Subscribed with the whole Name or at least the Initial Letters of the Debitors whole Name It was offered by some that Clacheries Oath might be taken ex officio or de calumniâ— not simply to refer the Debt to his Oath but whether that truly he set to this mark before these Witnesses but Robert Brown being a dying the Lords would not defer but decided the Case and found that this Writ being a Bill of Exchange among Merchants and Clacheries custom so to grant Bills of greater importance then this being clearly proven and none appearing for him they decerned against him upon the Bill and Testimonies many of the Lords being of different Judgement and that it was of dangerous preparative to encourage Forgerie but it was Sustained only in all the particular Circumstances aforesaid and not to be a general Rule Iohn Boswel contra Town of Kirkaldie Eodem die THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of Iuly 1668. of the Process against them and having objected against that
extended the same only to anterior Creditors without mention of posterior Creditors the same might be thought to be of purpose omitted and cannot be extended by the Lords The Lords found the matter of fact and circumstances alleadged Relevant to infer a presumptive fraud and contrivance betwixt the Father and the Son which did insnare the Creditors who continued to Trade and therefore Reduced the same as to the Creditors and preferred them and the Relict in so far as she was a Creditor but not for any posterior or gratuitous Provision to her or to her Children but they did not find the two first grounds Relevant to prefer a posterior onerous obligation to a prior gratuitous or that this Bond was as a â—egitâ—ime Revockable and the Lords were chiefly moved because of the inconvenience to Creditors acting bona fide with a person Trading and repute in a good Condition And where in eventu his Estate is not sufficient both to pay his Creditors and this Bond for if it had been sufficient for both they would have come in paâ—â— passu having both done Diligence within the year Iohn Brown contra Robert Sibbald Eodem die IOhn Brown having taken a Feu of some Aikers of Land at a great Rent in Victual and Money pursue Robert Sibbald now his Superior to hear and see it found and declared that he might Renunce and be free of the Feu Duty The Defender alleadged Absolvitor because this Feu was by a mutual Conâ—ract by which the Vassal had bound him and his Heirs to pay the Feu Duty yearly and which obligation he could not louse at his pleasure for albeit Feues which are proper and gratuirously given without any obligement on the Vassals part but given by a Charter or Disposition as being presumed to be in favorem of the Vassal he might Renunce the same nam cuivis licet favori pro se introducto renunciare but here the Vassal being expresly obliged for the Feu Duty cannot take off his own obligation this case being like unto that of a Tack which being by mutual Contract cannot be Renunced though by a Tack only granted and Subscribed by the Setter it may The Pursuer answered that he opponed the common opinion of all Feudists de feudo refutando wherein there is no exception whether the Feudal Contract be Subscrived by both Parties for every Contract must necessarly import the Consent of both Parties and the acceptance of a Vassal to a Feu by way of Dispoâ—ition is all one with his express obligation in a mutual Contract 2dly Though such a Contract could not be Renunced yet this Pursuer may Renunce because by a Back-bond by the Superior who granted the Feu under his Hand he has liberty to Renunce when he pleaâ—es The Defender answered that this Back-bond not being in corpore juris nor any part of the Investiture it was only personal against that Superior who granted the same but not against the Defender who is a singular Successor It was answered that the mutual Contract not being de natura feudi but at most importing an obligement not to Renunce the Feu any personal Deed before this Superiors Right under the Hand of his Author is Relevant against him as well as his Author The Lords found the alleadgeances upon the Back-bond Relevant against the Supeâ—â—or though singular Successor it being granted of the same Date with the Feudal Contract and relating to a matter extrinsick to the nature of the Feu and so suffered the Pursuer to Renunce the same Gilbert Mcclellan contra Lady Kirkcudbright February 13. 1669. GIlbert Mcclellan being Infeft by the Lord Kirkcudbright in an Annualrent effeirand to four thousand Merks out of the Lands of Auchinâ—lour thereafter my Lady was Infeft in Property or an Annualrent out of the Lands at her pleasure for her Liferent use and after my Ladies Infeftment my Lord gave a Corroborative Security of the Property of Auchinflour and stated the four thousand Merks of principal and the two thousand and five hundreth Merks of Annualrent in one principal and Infeft him thereupon in Property wherein Gilbert was many years in Possession before my Lords Death In the Competition betwixt my Lady and him he craved preference because he was seven years in Possession 2dlie Because his first Right of Annualrent still stands and was Corroborat and therefore as he would undoubtedly have been preferred to my Lady for all his Annualrents for the sum of four thousand merks by his first Infeftment which is prior to my Ladies and as an appryzing by poinding of the Ground for these annualrents though posterior to my Ladies Infeftment would be drawen back ad suam causam to his Infeftment of annualrent and be preferred so my Lord having voluntarly granted-this Corroborative Security to prevent an appryzing it should work the same effect as if an appryzing had been then led and an Infeftment thereupon which would have accumulat the annualrents then past and made them bear annualrent in the same manner as this Corroborative security does The Lords preferred Gilbert for the whole annualrents of his four thousand Merks conform to his first Infeftment but would not Sustain the Corroborative Security being posterior to my Ladies Infeftment as if it had been upon an appryzing to give him annualrent for 2500. merks then accumulate but found no moment in his alleadgance of the Possessory Judgement unless it had been seven years after my Lords death when my Lady might have preferred her Right and not contra non valentem agere The Creditors of Balmerino and Couper contra my Lady Couper Februarie 16. 1669. THe Deceased Lord Cowper having Disponed his Estate to his Lady some of his Creditors and some of Balmerino's Creditors who was his Heir appearand did raise Reduction of the said Disposition as done on Death-bed and before the day of Compearance they give in a Supplication desiring Witnesses to be Examined and to remain in retentis that Cowper had Contracted his Disease whereof he died before the Subscribing of this Disposition and that he never went out thereafter but once to the Kirk and Mercat of Cowper which times he was supported and fell down Dead a Swoon before he was gotten home It was answered for the Lady Cowper First That Witnesses ought not to be Examined until the Relevancy of the Libel were Discust unless they were old or Valetudinary or penury of Witnesses whereas there are here fourty Witnesses ctaved to be Examined and the coming to Kirk and Mercat being publick Deeds there would be no hazard of wanting Witnesses 2dly The Creditors or appearand Heir have no interest unless the Heir were Entered or they had appryzed or had a real Right neither can the Creditors be prejudged by the Disposition as being on Death-bed because they may Reduce the same as being posterior to their Debts upon the Act of Parliament 1621. and the reason of Death-bed is only competent to Heirs and to these having real Rights from
the Heir and not to their personal Creditors The Lords ordained the Witnesses to be Examined to remain in retentis concerning my Lord Cowpers condition the time of Subscribing the Disposition and of his coming abroad and allowed my Lady also Witnesses if she pleased for proving what his condition was at these times reserving all the Defenses and Alleadgances of either Party in the Cause for they found that the Creditors of Balmerino as appearand Heir had interest to Declare that their Debts might by legal Diligences affect the Estate of Cowper unprejudged by this Disposition as being made by Cowper on Death-bed and that the Reduction in so far as might contain such a Declarator would be Sustained for no Party can be hindered to Declare any point of Right competent to them and it was also thought that though there were many Witnesses called to find out who truely knew the Defuncts condition yet there might be few who truly knew the same and these might be removed out of the way either by Death or by Collusion Alexander Hamiltoun contra Harper Eodem die UMquhil Iohn Hamiltoun Apothecarie having purchased a Tenement in Edinburgh to himself in Liferent and his Son Alexander in Fee thereafter he borrowed 1000. merks from Thomas Harper and gave him a Tack of a Shop in the Tenement for the Annualrent of the Money After his Death Alexander his Son used a Warning by Chalking of the Doors by an Officer in the ordinary Form and he being Removed Alexander pursues now for the Mails and Duties of the Shop from his Fathers Death till the Defenders Removal who alleadged Absolviture because he bruiked the Tenement by vertue of his Tack bona fide possessor facit fructus perceptos suos It was answered that the Tack being but granted by a Liferenter could not Defend after the Liferenters Death and could not be so much as a colourable Title of his Possession 2dly That he could not pretend bona fidesâ— because he was Interrupted by the Warning It was answered by the Defender that the Tack was not set to him by Iohn Hamiltoun as Liferenter nor did he know but he was Feear being commonly so repute neither could the Warning put him in mala fideâ— because there was no Intimation made thereof to him either Personally or at his Dwelling-house but only a Chalking of the Shop-door The Lords Sustained the Defense and Duply and found him free of any Mails or Duties till Intimation or Citation upon the Pursuers Right here the Pursuer did not alleadge that the Warning by Chalking of the Shop-door came to the Defenders knowledge as done by the Pursue Sarah Cockburn and Mr. Patrick Gillespie contra Iohn Stewart and the Tennents of Lintone February 18. 1669. SArah Cockbâ—rn being Infeft in Liferent in an Annualrent of 1200. merks yearly out of the Barony of Lintone She and Mr. Patrick Gillespie her Husband insisting for her Annualrent in Anno 1657. obtained payment from Iohn Stewart and gave him a power to uplift the same from the Tennents and delivered to him the Letters of Poinding to be put in Execution Thereafter Mr. Patrick obtained a second Decreet against some Wodsetters whose Rights were posterior to the Annualrent for the years 1658 1659 and 1660. and upon payment of these three years did acknowledge payment made of the saids three years Annualrent and all bygones whereunto he had Right Mr. Patrick having granted Iohn Stewart a Bond to warrand him anent the year 1657. and that he had given no Discharges that might exclude him The Tennents of Lintoun Suspends the Charge for the year 1657. upon that Reason that Mr. Patrick had Discharged the Annualrent for the years 1658 1659 1660. and all preceeding whereunto he had right Whereupon Iohn Stewart Charged M. Patrick upon his Bond of Warrandice who Suspended upon this Reason that the Discharge could not exclude John Stewart albeit it bare all preceedings to which he had Right because when he granted the Discharge he had no right to the year 1657. which he had received from John Stewart and given him Warrand and his Letters to Poind for Mr. Johns Stewarts own use It was answered that unless that Order had been intimat the Right remained with Mr. Patrick and so his general Discharge extended thereto It was answered that albeit Intimation was necessar as to establish the Right in the Assigneys Person yet Mr. Patricks Warrand was sufficient to exclude him at least the matter of his Right being thereby dubious the general Discharge cannot be effectual against him if by the Oaths of the Wodsetters that got the Discharge it appeared that they paid him not the year 1657. and some of their Oaths being taken he who paid the Mony for himself and the rest Dâ—poned that the year 1657. was not paid and that there was no Decreet against the Wodsetters for 1657. but only against the Moveable Tennents to whom the Discharge containing the said general Clause was not granted The Lords found that in respect of the Oath the general Discharge extended not to the year 1657. and therefore Suspended the Letters against the said Mr. Patrick upon his Bond of Warrandice and found the Letters orderly proceeded at Iohn Stewarts Instance against the moveable Tennents of Lintoun for the year 1657. The Tennents further alleadged that since the year 1660. they did produce three Consecutive Discharges from Mr. Patrick which imports a Liberation of all years preceeding specially seing Mr. Patrick was never denuded of the year 1657. nor no Intimation made It was answered that such a Liberation is but presumptive presumptione juris and admits contrary Probation and is sufficiently taken away by the Oath of the Party acknowledging that year unpaidâ— and the Warrand given to Iohn Stewart to lift it for his own use before these Discharges The Lords Repelled also this Defense upon the three Discharges in respect of the Reply Trinch contra Watson Eodem die John Watson being Curator to Margaret Trinch and having Contracted her in Marriage with his own Sister Son there is a Disposition granted by her to the said Iohn Watson of all her Means and in the Contract he Contracts with her 1000. pounds whereunto the Heirs of the Marriage are to succeed and failing these to return to the said Iohn himself she died before the Marriage and David Trinch Stationer being Served Heir to her raises Reduction of the Disposition and Substitution in the Contract of Marriage upon two Reasons First That albeit the Disposition contain Sums of Money yet being of the same date with the Contract of Marriage in which Iohn Watson Contracts 1000. pound with the said Margaret Trinch which unquestionably has been all that has been gotten for the Disposition the said Disposition is a part of the Agreement in relation to the Marriage and must be understood as granted in Contemplation of the Marriage as if it had been Contracted in the Contract of Marriage so that the Marriage not having
whom he had entrusted them had carried them away but there being produced in the Process attested doubles of the former Dispositions under the hands of Nottars The Pursuer craved that seing the Witnesses alleadged insert might die and the Captain of purpose keeped up the Principals that the Witnesses might be Examined upon what they know of the Truth or Forgery of the saids Dispositions Which the Lords granted the Fame and suspition of the Forgery being so great though ordinarly they do not Examine Witnesses upon the Forgery of a Writ till the principal be produced that the Witnesses may see their Subscriptions whereupon Steel one of the Witnesses compeared and Deponed acknowledging the Forgery and the way of contrivance of it in which the Captain made use of him whereupon the Lords proceeded to Examine the Tutor who stifly stood to the verity of the Dispositions as being truly Subscribed by him but differed in the Date and in the persons who were Witnesses to the Subscription The Captains Son in law being also Examined whether or not the Captain had employed him to corrupt the Witnesses and if he had written any Letter to him to that purpose produced a Letter mentioning some things by word which he should diligently go about and being asked who the Bearer was Deponed that he was Robert Ogilvy the Tutors Servant who being in the House and presently called to the Bar upon Oath being interrogat whether he had brought North any Letter from the Captain to his Good-son Deponed that he had brought no Letter from him to his Good-son or any other and thereafter the Letter being showen him and confronted with the Captains Good-son he Deponed that he did bring that Paper and delivered it to the Captains Wife but he thought it was an order not being Sealed and being interrogat whether he had any Message in word from the Captain to his Good-son Deponed he had none and upon reading of the Letter bearing the contrair and confronting with the Captains Good-son he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh and the Captains Good-son further acknowledged that Ogilvy had desired him to deall with the Witnesses to stand to the Truth of the Writs he stifly denyed that point The Lords having considered his grosse Prevarication and contradictory Oath ordained him to be put in the Irons and the next day to stand in the Pillary betwixt ten and twelve and a Paper on his Brow to declare the Cause and did declare him infamous and appointed him to continue in Prison till further Order Mr. William Kintor contra the Heirs and Successors of Logan of Coat-field Iuly 9. 1669. LOgan of Coat-field having become Cautioner for the Tutor of Burncastle an Inhibition used upon the act of Caution Mr. William Kintor having Right by Progress from Burncastle obtained Decreet against the Representatives of the Tutor and of Coat-field the Cautioner for payment of the Annualrent of 10000 pounds due to the Pupil by the Marquess of Hamiltoun and the like Sum due by the Earl of Bucclengh in respect that the Tutor was obliged to have uplifted these Annualrents and to have employed them for Annualrent and thereupon pursues a Reduction of the Rights granted by the Tutors Cautioner as being granted after the Cautioner was Inhibited these Acquirers raise a Reduction of Mr. Williams Decreet and repeat the Reasons by way of Defense alleadging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquess of Hamiltoun and Earl of Buccleugh because they were in responsal Hands and the Pupil had no Damnage for it was free for the Tutor to uplift the Annualrents of Pupils Money when secure at any time during the Pupillarity but here they offer to prove the Tutor Died durante tutela and so was not lyable when he Died to uplift these secure Annualrents or to have employed them The Pursuer answered that the Lords had already found at the same Pursuers Instance against Iohn Boyd that the Tutor was lyable for Annualrent not only pro intromissis but pro omissis and for the Annualrent of the Pupils Annuals a finita tutela which is finished either by ending the Pupillarity or the Death or Removal of the Tutor It was answered that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil for that way of ending thereof could only been foreknowen by the Tutor that within the same he might lift the Pupils Annuals and give them out on Annualrent but he could not foresee his own Death but might justly think he had time before the expiring of his Tutory to lift and employ and so the Tutor not having failed in his Duty his Cautioner is free It was answered First That by the Lords dayly Practique Tutors are lyable for the Annualrents of Rents of and within a year after the Rents are due and there being so much parity of Reason in Annualrents it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory for albeit he might have keeped them in his Hands unemployed and only to leave them employed at the ish of his Tutory yet he was obliged to uplift them and if by any accident as being preveened by Death he did not employ them that accident should be on his peril not the innocent Pupils 2dly If need beis the Pursuer offers to prove the Annualrents were uplifted by the Tutor and so these that Represent him and his Cautioners are lyable for Annualrent therefore at least from the Death of the Tutor The Lords found that the Tutor was neither obliged to lift nor give out on Annual the Annualrents of his Pupil if the Debitors were Responsal but only once betwixt and the end of the Pupillarity and if he Died betwixt and the end of the Tutory he was free both of the Annual and Annualrents thereof but if he did actually uplift the Annalrents they found that it was sufficient to employ them any time before the Tutory ended and found that his Heir was lyable for Annualrent not from the Tutors Death but from the end of the Pupillarity and that he could be no further lyable then the Tutor if he had lived in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs and employ them This was stoped to be further heard Garner contra Colvin Iuly 10. 1669. JAmes Colvin having Apprized the Lands of Lady-kirk and some Tenements in Air and being Infeft therein Garners Wife and Bairns raise a Reduction and alleadge that the Apprizers Right is null as to the Tenements in Air because Iohn Garner had never Right thereto but the Right was Originally granted to young Iohn Garner the Pursuer by his Mother Brother The Defender answered that the said Right must be affected with his Apprizing as if it had been in the Fathers Person because
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
who bona fide continued the same seing the Father continued in Possession of the Lands and built thereupon and gave an Infeftment of Annualrent to the Merchants after the Infeftment granted to his Son and likewise raised a Poinding of the Ground upon his Infeftment of Annualrent whereupon he now insists It was alleadged for the Son and the Lord Tarphichen that the Sons Right being publick and Registrat in the publick Registers prior to the Pursuers Annualrent for the Bonds whereupon the same proceeds it doth fully exclude them from Poinding of that Ground The Merchants repeat their Declarator by way of reply To which it was answered that whatsoever may be said of Latent and Clandestine Rights betwixt Fathers and Children and other confident Persons yet there is no Law hindering a Father to give an publick Infeftment to his Son unlesse it be in prejudice of the Creditors to whom he was due Sums at that time which being a valide pubick Right no Deed or pretence of fraud of the Father thereafter can prejudge the Son in his Right who being an Infant was not capable to be partaker of fraud neither can fraud be presumed as to Creditors who are but to Contract thereafter nor can a publick Right Registrat and a publick Seising which all the World may and all Concerned ought to know be esteemed a contrivance or fradulent Right and as to any Commerce betwixt these Merchants and the Father which began before the Sons Right no respect can be had thereto because the Pursuers Bonds are lately for a Sum of Money and must import that the former Debts by Traffick were past from or Discharged and if need beis offered to prove that they were actually Discharged 2dly The making up a Debt to be prior to take away the Sons Infeftment can only be probably by Writ or Oath of Party and not by Witnesses who cannot prove above 100. Pounds 3dly Though the cause of the Bond were proven to be a Correspondence and Traffick begun before the Sons Infeftment it is no ways relevant against any Provisions gotten after the Infeftment for such can have effect but from their own Date and the effect is cut off as to what is posterior to this publick Infeftment seing the Merchants did either follow Massons Faith upon their hazards or else they should have had a Procurator here and taken advice how they might have been secured of Massons Estate by the Law of Scotland who would have taken notice by the Registers that Masson was denuded by a publick Infeftment which nothing he could do thereafter could prejudge and would have certified the Merchants thereof and their failing therein is on their own peril and albeit their payment and acting bona fide is sometimes good though made to these who had not a valide but a colourable Right by these who knew not a better Right and might have been compelled to pay upon the colourable Right yet other Deeds though bona fide done are upon the peril of the Actor To which it was answered that by the common Law and Custom of this Nation all fraudulent Deeds are Reduceable and there can be no Deed more fraudulent then this of a Father to his own Infant Son for whom he is legal Administrator and must accept the Right he gives himself and so colludes with himself to make a snare to intrap Merchants and Strangers in the midst of a course of Trade with them which is a common ground of Law whether the Debt be prior or posterior to the Sons Infeftment and albeit the Merchants Bond be posterior yet seing it bears to be for Ware Witnesses according to the ordinar custom are Receiveable for astructing the Writ to prove what the Ware was and when Received which will not be prejudged though there had been a Discharge of the Ware granted the time of the Bond unlesse there had been a real and true payment of the Money for there being nothing then payed this Bond ceases not to have a true anterior Cause as if it had been granted on Death-bed upon a Discharge then given it would be valide as being upon an anterior Cause before the Sicknesse neither is there any difference to be made of the Parts of the Traffick after the Sons Infeftment but seing the Correspondence began before and is once continued as a constant Correspondence and Traffick it must all be drawn back to its beginning as if the Merchants on both sides had Contracted when they began their Correspondence that they should faithfully pay what either of them Received from other till the Correspondence was given up The Lords found that this Bond although posterior to the Sons Infeftment not bearing borrowed Money but Merchant Ware that the quantity and times of furnishing thereof might be proven by Witnesses and albeit there had been a Discharge of the Ware yet so much thereof as was furnished before the Sons Infeftment would affect the same but found that the Sons Infeftment being publick and Registrat no posterior Deed of the Fathers by continuing Traffick or Correspondence nor no pretence of fraud of his could annul or burden the said Infeftment for any Debt contracted posterior thereto Executors of Mr. Thomas Ridpeth contra Iohn Hume Eodem die IN a Competition betwixt the Executors Creditors of Mr. Thomas Ridpeth about a Sum due to Mr. Thomas by Bond and by him Assigned to Iohn Hume who not having Intimat it in Mr. Thomas his Lifetime did thereafter get payment of a part of the same and a Bond of Corroboration for the rest thereafter Toredlie for a Debt due to him by Mr. Thomas Ridpeth Confirms himself Executor Creditor to Mr. Thomas and alleadges that he ought to be preferred because the Assignation made to Iohn Hume was an uncompleat Right wanting Intimation so that the Sum remained in bonis of Mr. Thomas Ridpeth and that he had followed the only legal way to affect it by Confirming himself Executor Creditor to Mr. Thomas and albeit the Assigney may force any other Executor to pay to him yet not an Executor Creditor who is Executor to his own behove for satisfying his Debt It was answered that the Assignation though not Intimat being a special Assignation albeit it cannot have Execution by Horning yet it is the undoubted ground of an Action even after the Defuncts Death against the Debitor and no Executor Creditor can have Right thereto Which the Lords found Relevant and preferred the Assigney Duke Hamiltoun contra Weir of Balckwood Iuly 28. 1669. THe Duke of Hamiltoun insisted in his Declarator against the Laird of Blackwood for declaring that he had Right to his Superiority by the Act of Parliament 1661. bearing That whosoever should get Right from the King to the Superiority of the annexed Kirk Lands the same should be valide as to these Vassals who had Confirmed or should Consent And alleadged that Major Ballantine to whom Blackwood is Heir had taken an Infeftment of the Estate of Blackwood
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
Cross of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâ—st 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ— without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pâ—rocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
Practique produced observed by Dury upon the 1â— of March 1637. betwixt Hume and Hume of Blackadder wherein Compt and Reckoning was Sustained at an appearand Heirs instance the Custom having been ever since contrair upon this Ground that no Party should be troubled to Compt at the Instance of those who when the Compt was closed cannot exoner them and yet may put them to make Litiscontestation and Probation in the Cause Duke of Buccleugh contra Parochioners of Eodem die THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land who alleadged that the Minister having a Gleib before extending at least to two Aikers the Earl upon this Designation had gotten Possession thereof and could only seek Relief for the Superplus It was answered that these two Aikers had never been designed as a Gleib but the Pursuers Predecessors were infeft therein and in Possession thereof before the Ministers and any Possession they had was but by their sufference and conâ—â—vance It was answered that decennalis triennalis possessor non tenesur docere de tâ—â—uâ—o and the Minister was not only in Possession thirteen years but thirty years It was answered that albeit Possession may be a Title yet it may be elided by the Pursuers Right which cannot be taken away but by Prescription whereupon the question arose how the Tollerance or Sufference of the Ministers Possession was probable whether by Witnesses or not seing Tollerances are not ordinarly so proven The Lords found that if the Ministers Possession were alleadged to have been 40. year as belonging to the Kirk that the Dukes Tollerance could only be proven by Writ to elide the same but if for fewer years they found the Tollerance or Sufference probable by Witnesses Mr. Arthur Gordoun contra Laird of Drum Eodem die MR. Arthur Gordoun as Assigney to a Decreet recovered against the Laird of Drum Charges him thereupon He Suspends on this Reason that the Debt being originally due to a Defunct his two Executors nominate recovered the Decreet and the one only assigned the whole to Mr. Arthur whereby he can only have Right to the half It was answered that the other Executor being Dead before the Assignation the Office accresced to the Surviver who might uplift all that was in bonis defuncti not uplifted It was answered that this Debt was no more in bonis defuncti but being established in the Executors Person by Sentence testamentum suit oxecatum and the Deceased Executor's half behoved to belong to their Executors and not to accresce Which the Lords Sustained Lady Ballagan contra Lord Drumlanrig Iune 23. 1671. THe Lady Ballagan being by her Contract of Marriage provided to certain Lands and amongst others to the Lands of Birks the Contract bears that she accepts of the saids Lands in full satisfaction of all further Conjunct-Fee Liferent or Terce she was Infeft in the Lands of Birks by her Husband but was not Confirmed by the Lord Drumlanrig Superiour of whom the Lands held Ward The Lady pursues the Tennents of Birks for Mails and Duties Compearance is made for the Lord Drumlanrig Superiour who craved preference because the Lands are now by Ward in his hands by the Death of the Husband and minority of the Heir And as for the Ladies Infeftment it can have no effect against the Ward because it is not Confirmed It was answered that the Lands being Ward and lesse then the third part of the Ward Lands holden of the Lord Drumlanrig the Lady has Right by Law thereto as her Terce It was answered That by her Contract of Marriage she had accepted the Lands provided therein in satisfaction of her Teroâ— which is the ordinar conception of a Renunciation as when a Sum is accepted in satisfaction of any prior Debt it imports a Renunciation and Discharge of the prior Debt and an Inhibition prior to the last Bond will Reduce any Right thereupon Neither can it be maintained as having an anterior Cause by the former Bonds yea any Appryzing upon them would be void because they are Renunced It was answered for the Lady First That there was here no formal Renunciation or Discharge of the Terce and the acceptance of Lands for it doth very well allow that the Land accepted may be bruiked as Terce at least a Terce of that Land must be due though no Terce of other Lands can be claimed and albeit the Clause in satisfaction in personal Rights is commonly understood to Renunce and extinguish the prior Rights unless they be Reserved Yet it is not so in real Rights for if any person have many Rights to Lands and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest that does not Renunce his former Rights to that Land but he may defend himself with them all So here accepting of Lands in satisfaction of a Terce does not Renunce the Terce as to the Lands accepted 2dly Albeit this Clause could import the Renuncing of all Terce that can never be extended to the benefite of the Superiour nor can it be understood the Contracters mind to exclude the Wife from the Terce to make it accresce to the Superiour in both their prejudices because the Husband by the Warrandice must make out the Joynture 3dly Albeit the Renunciation could be profitable to the Superiour yet it being by this Clause in the Contract the Superiour cannot question the Ladies Infeftment which is the cause of the Renunciation but must adhere to the whole Clause nam qui approbat non reprobat It was answered that the common Sense of this Clause of acceptance does still import a full Renunciation neither can the intention or meaning of the Parties import any thing unlesse they had acted accordingly for it had been easie for them to have said but prejudice of the Terce as to thir Lands so that the Terce being Renunced the Renunciation is profitable to all Parties having Interest because the Right thereby Renunced is simply extinct Neither needs the Superiour approve the Infeftment Un-confirmed by making use of the Renunciation for as there could be no pretence for that upon the naked Clause without any Infeftment so the meaning can only be that if the Clause had been perfected by a valide Infeftment he could not have quarrelled it The Lords preferred the Superiour and found the acceptance a full Renunciation of the Terce both as to the Lands accepted and others Helen Hume contra Lord Iustice Clerk Iune 28. 1671. UMquhile Hume of Rentoun having made several Provisions to his Children and amongst the rest to Helen Hume and having recommended the same to his Son now Justice Clerk he gave a Bond to the said Helen of two thousand Merks payable upon Requisition of fourty days the said Helen pursued Registration of the Bond wherein it being alleadged that any Requisition made was past from by acceptance of Annualrent for Terms after The Lords Assoilzied from that Charge until
Requisition were made and new Requisition being made since before the Extracting the Absolvitor The Lords Sustained the same It was further alleadged Absolvitor because the Bonds granted by the Father was done on Death-bed and the Bond granted by the Defender his Son was in his Minority and he had Reduction depending upon the saids two Reasons The Pursuer replyed that the Defender had Homologat the Bond in question by a posterior Contract whereby he had appointed a yearly payment to his Mother in satisfaction of this and the other Portions The Defender duplyed that that Contract was no Homologation being Subscribed by him when he was Minor having Curators without their Consent and so is null by exception The Pursuer triplyed that the Defender had Homologat the said Contract and Bond in question by these Deeds First That after Majority he had payed Annualrent 2dly That he had pursued Exhibition and Registration of the said Contract and thereupon had obtained the same Registrat and the Decreet Decerns Letters to be Direct at his Instance thereupon It was answered that the payment of the Annualrent albeit voluntar though it may exclude repetition of it self it cannot infer Homologation of the whole Bond especially the payment being made by a Brother to an Indigent Sister 3dly Payment of Annualrent cannot Homologat a Contract which is null by exception 4thly Any payment that was made was after the Decreet of Registration and so necessar and as to the Exhibition the pursuing for a Delivery of a Writ doth not import the approbation of the contents of it but only a calling for it because the Writ belongs to the Subscriber thereof though he may quarrel the obligement therein contained and albeit the Writ was ordained to be Registrat yet there was neither Charge nor Execution used thereupon The Lords found the payment of the Annualrent in manner foresaid not to import Homologation but they found that a Writ Subscribed by a Minor without Consent of his Curators as it might be Ratified so it might be Homologat and that it was de facto Homologat by this Decreet of Registration containing neither Reservation nor Protestation for quarrelling the Writ Registrat It was further alleadged that the new Requisition was null bearing to proceed on a Procutry and not bearing the Procutry produced It was answered the Procutry was not called for and that the having of the Writs which the Requisition mentioned did import a Power to Require 2dly This is a Dilator after a Peremptor The Lords found the alleadgeance upon the nullity of the Requisition Receivable after the Peremptor and Sustained the Requisition the Pursuer producing the Procutry which was the Warrand thereof before Extract Forbes of Watertoun contra Shein Eodem die FOrbes of Watertoun pursues Reduction of an Apprizing ex capite inhibitionis The Defender alleadged Absolvitor because the Bond which was the ground of the Inhibition is satisfied in so far as there followed thereupon an Apprizing which came in the Person of the Debitors appearand Heir and so is Redeemable from him for the Sums he truly payed by the Act 1661 betwixt Debitor and Creditor and it is offered to be proven that the Sums he payed are satisfied by Intromission with the Rents of the Apprized Lands or what is wanting the Defender will instantly satisfie or purge It was answered that albeit the Act of Parliament had declared that Apprizings might be satisfied by payment of the true Sums payed for them by the appearand Heir that cannot extend to this Bond or Inhibition or Reduction thereupon for the Pursuer may passe from his Apprizing and yet make use of the Bond and this alleadgeance will only be Relevant when he insists upon his Apprizing The Lords found the Defense Relevant that the satisfaction of the Apprizing on the Bond did to all effects satisfie and extinguish the Bond it self The Creditors of Balmerino contra The Lady Couper Eodem die THe Deceast Lord Câ—â—per having made an Heretable and irredeemable Right of his whole Estate and Dignity to his Lady and her Heirs The Lord Balmerino his nearest Heir in the Estate making use of the Names of certain of his Creditors that he might not be necessitate to enter Heir before the event of this Plea pursues a Reduction of the said Disposition as being on Death-bed The Defender alleadged First That the Reason of Reduction as it is Libelled is not Relevant that the Defunct contracted a deadly Disease before the making of the Disposition and that he Died of the said Disease which is not Relevant unless the particular Disease were condescended upon otherwise it will remain conjectural and unsure and Witnesses cannot distinctly Depone whether he was sick or not specially he being an oldMan so that they could not distinguish betwixt sicknesse and weaknesse through old age 2dly The Reason is not Relevant unless the Disease were alleadged to be morbus sonticus that might affect the Mind and infer a weaknesse which is different from Fatuity or Insensibility 3dly The Defender alleadged Absolvitor because he offered him to prove that the Defunct was in Health the time of the Disposition at least in as good Health as he had been for several years or moneths before when he did go ordinarly abroad to Kirk and Mercat about all his Affairs at least if he had any indisposition it was not impedimentum rebus agendis because it is offered to be proven that he constantly put on his Cloaths and walked up and down his House convoyed Strangers to their Chambers freely without being helped or supported and in the same manner went down with others to their Horse to the Green made several Accompts and Bargains and frequently Played at Cards all which must necessarly infer his Health unless a circumstantial Disease were condescended upon and proven 2dly The Defender offered to prove that after the Disposition the Defunct went to Kirk and Mercat at least to one or other of them which the Law hath allowed as unquestionable evidences of Recovery of Health and which therefore is Relevant though Sicknesse was specially proven to have been Contracted before and condescends that the Disposition being Dated the eight of December 1668. upon the Thursday immediatly after the Defunct went to the Mercat of Couper it being the Mercat day and upon the Sabbath thereafter heard Sermon in the Kirk of Couper The Pursuer answered that this Reason of Reduction is most Relevant and in the same Terms that the Reason of Death-bed has alwayes been Libelled neither was it ever found necessar to condescend upon morbus sonticus but as Craig expresses it sufficit si morbus precedat mors sequatur before the Defunct go abroad yet probatis extremis presumuntur media it is still presumed that so long as the Defunct after the Disease remained within Doors that the Disease continued and that presumptione juris de jure neither doth it admit a contrare probation by alleadging that the Party convalesced medio
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
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
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
the Apprizing but not by the Messenger being produced as a Title in a Process the same was not Sustained without the Messengers Subscription or his Executions but the Party was remitted to prove the Tenor thereof December 1665. Mâ—culloch contra Craig An Apprizing was found to be satisfied by Intromâ—ssion not only within the years but also within the three years added by the Act betwixt Debitor and Creditor though the Apprizing was led long before that Act Ianuary 20. 16â—6 Clappertoun contra Laird of Torsonce Here it was also found that a part of the Lands Apprized being sold irredeâ—mably by the Apprizer were Redeemable within thrâ—e years and that the singular Successor was only comptable for the Rents thereof and not the Apprizer who had sold the same before the Act. An Apprizing led upon several Sums of one whereof the Term of payment was not come the Apprizing was â—ound null as to that Sum but whether it would be null in totum or whether it would be valide to carry the whole Right of the Lands as that Sum had never been in or if a proportional part of the Land effeiring to that Sum would be free of the Apprâ—izing the Lords decided not but were of different Iudgements February 16. 1666. Sharp of Houstoun contra Glen An Apprizing was found extinct as being satisfied by the Debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his Name therein which was instructed partly by the Sons Oath which was found not sufficient to prove alone and partly by Witnesses ex officio one of which who proved most clearly was his Brother February 27. 1666. Creditors of the Lord Grâ—y contra the Lord Gray An Apprizing on a Bond bearing a Sum to be payable without Requisition was found valide without either Requisition or Charge of Horning Iuly 21. 1666. Thomson contra Mâ—kitrick An Apprizing was found extinct as to a Party in whose favours the Apprizer granted a Back-bond bearing that the Apprizing should not be prejudicial to that Parties Right which was found Relevant against a singular Successor viz. The Kings Donator having right to the Apprizing by Foreâ—aulture Iuly 31. 1666. Earl of Southesk contra Marquess of Huntly An Apprizing was found satisfied within the Legal by Intromission and no part of the Martinmas Rent was ascribed to a Tercers Right not being served though she gave Tack to the Apprizer he having Entered on the Debitors Possession December 21. 1666. Zeaman contra Oâ—â—phant An Apprizing led against an appearand Heir as specially Charged to Enter Heir was preferred to the Infeftment â—f the next apparent Heir after the Heir Charged his death or the Infeâ—tment of their singular Successor granted after the matter became Litigious albeit the Apprizer from the apparent Heir Charged was never Infeft nor Charged the Superiour upon the Appâ—izing neither was the apparent Heir himself Infeft but that the Superiour might be Chaâ—ged at any time after the apparent Heirs death and albeit the next apparent Heirs could not Enter Heirs to the former apparent Heir Charged but to his Predecessor to the effect they might Reduce or Redeem the Apprizing led against the former apparent Heir February 6. 1668. Iohnstoun contra Erskin An Apprizing was found Redeemable from the eldest Son and apparent Heir of the Debitor within ten years for the sums he truly payed out by the Act of Parliament 1661. albeit his Father was living the time of this Process Iune 19. 1668. â—urnet contra Nâ—smith An Apprizer since 1652. pursuing the rest for his part of the Duties as coming in with them pari passu by the Act 1661. betwixt Debitor and Creditor his Apprizing was â—ound not to be effectual till the allowance thereof were Registrate conform to the late Act of the same Parliament anent Registration of allowances but that it required no determinate time to Registrate but whensoever Registrate it would be effectual as to all Rights not compleated before Registration Iuly 17. 1668. Steuart contra Murraâ—â— An Apprizing on an Assignation to a Cautioner or for his behove Apprizing for the whole sum without deduction of that Cautioners part was not found null in totum but Restricted to the Sum truly due being within the Legal Iuly 22. 1668. Iohnstoun of Sheins contra Arnold An Apprizing and Infeftment thereon granted by the Exchequeâ— of course without notice when the King by Forefaulture was imâ—ediate Superiour was found not to supplie a Confirmation or to exclude the Donator of the Forefaulture pursuing a Removing on a posterior Gift December 9. 1668. Earl of Argile contra Stirling Apprizing with a Charge against the Superiour does not exclude the Liferent Escheat of the Vassal against whom the Apprizing was led without consideration whether the Superiour was in culpa by not obeying the Charge Iune 28. 1667. Dowglat contra Lisk An Apprizer having at several times Apprized on several Sums and Entered in possession by the first Apprizing before the secoâ—d was led was found to impute his whole Intromission to the first Apprizing that thereby it might be satisfied within the Legal The Apprizer was also found comptable for what sums he received for a part of the Lands sold by him within the Legal but for no greater price and a joynt probation was refused though it was in the Highlands the Apprizer offering to prove by Witnesses above exception and the Lords ordained both the Feears to be produced and the greatest prices to be proven that they might choose what Rate to â—ollow Ianuary 14. 1669. Mckenzie of Puglasâ— contra Ross of Auchnacloich An Apprizing led against one Charged to Enter Heir who dying un-infeft his Sisters as Heirs to his Grand-Father to whom he was Charged to Enter Heir were â—ound to have the Right of Reversion of the Appriâ—ing albeit they were not Heirs to their Brother who was Charged to Enter Heir but dyed un-infeft Ianuary 1â— 1669. Iohnstoun contra Erskin Lord Lyon An Apprizer having Charged the Superior was found not thereby to become Vassal so as by his death the Lands would â—all Waird but by the Death of the Party against whom the Apprizing was led unless the Apprizer when he Charged the Superior had presented a Chatter with an offer of Money and a Bond for what â—urther the Lords should modifie for the years Rent and had put the Superior in culpa aut mora in not Infefting the Apprizer and that whether the Superior required the same or not February 9. 1669. Black Donator by the Duke of Hamilâ—oun contra French Vide Liferent Dowglas contra Lâ—â—k An Apprizing was found extinct by the Intromission of him to whom the Apprizer granted Back-bond declaring the Apprizing to be to his behove and that against a singular Successor who thereafter obtained Disposition and Inâ—eâ—tment upon the Apprizers Resignation Iuâ—y 12. 1670. Kennedy contra Cuninghame and Wallace An Apprizing posterior was preferred to a prior Appriâ—ing being less
preferred to an Appryzing of the Lands led before that Term seing Infeftment followed not thereon before the Term Iuly 2. 1667. Luster contra Aitone and Sleigh Arresters Competing the â—irst Arrestment and first Citation before the Lords and compearance sine mora was preferred to a posterior Arrestment and Citation before the Sheriff though obtaining the first Decreet in absence the Arrester not being in that Shire November 23. 1667. Montgomery contra Rankine Arrestments were found not to reach the Fie of a Servant in so far as was necessary for the Servants Aliment conform to the condition of his Service but only as to the Superplus Iuly 9. 1668. â—oog contra Davidson Arrestment was found to Reach the next Terms Rent after it was laid on though it was not due when it was laid on Iuly 20. 1669. Lâ—ssy contra Cunninghame Arresters Compeâ—ing the posterior Arrestment by four dayes was preferred to the prior in respect the Term of the Sum for satisfying of which the Arrestment was laid on was not come the time of the Citation or Competition before the Baillies though by an Advocation raised by the prior Arrester without a just Reason of Advocation the Term was past before the Competition before the Lords Iuly 29. 1670. Charters contra Neilson AN ASSIGNEY was not excluded by payment made to the Cedent after Intimation albeit the Assignation was to the behove of the Cedents Son without a Cause onerous Ianuary 3. 1662. Ross of Earles-milns contra Campbel of Caddel An Assigney constitute by a Tutor who took Assignation to his Pupils Bond was found to have no Process against the Pupil till the Tâ—tor Compts were made unlesse the Assigney foâ—nd Caution for the Tutor Ianuary 24. 1662. Ramsay contra Earl of Wintoun An Assignation omnium bonorum by a Father to his Son was Sustained to give Processe against the Debitors albeit not Intimate in the Fathers Life and so in bonis defuncti Iune 25. 1663. Hallyburtoun contra Earl of Raxburgh An Assigney may be prejudged by the Cedents Oath before Intimation or if the Debitor pursue the Assigney ad hunc eâ—â—ectum to take away the Bond before Intimation by the Cedents Oath and his being so called and producing the Assignation will not exclude the Cedents Oath February 15. 1662. Laird of Pitfoddels contra Laird of Glenkindy An Assigney was found to have interest to pursue albeit his Assignation was not Intimate before the Cedents death without necessity of Confirmation Iuly 27. 1664. Muirhead contra 〈◊〉 Intimation November 18. 1664. Guthrie contra Sornbeg An Assignation being gratuitoâ—s the Cedents Oath was found sufficient against the Assigney Iune 16. 1665. Wright contra Sheils The like Iune 13. 1666. Iack contra Mowat An Assignation to a Reversion being Registrate in the Register of Reversions and a Liferent Infeftmeâ—â— of the Wodset Land Registrate in the Register of Seasines was found sufficient to give the Wife interest even in her Husbands time to Redeem that she might Redeem the Wodset Land for her Liferent use and to be preferred to an Appryzer of the Reversion after the Wifes Right Registrate as said is without necessity of any other Intimation December 5. 1665. Beg contra Beg. An Assignation to a Gift when it is incompleat and before it passe the Exchequer doth not exclude the Donators Back-bond at passing thereof even as to the Assigney Ianuary 13. 1666. Dollace contra Frazer of Streichen An Assignation to such a sum yearly out of the first and readiest of the Teinds of such Lands found not preferable to a posterior Appryzing of these Lands and Teinds as an Assigâ—ation to the Tack or whole Tack-duty of the Teinds would have been preferred as habilis modus February 6. 1666. Watson contra Fleming Assignation Vide Compensatione Cockburn contra Laird of Craigivar An Assigney to a Tack which is Transmitted by Assignation was not found as a singular Successor to Lands passing by Infeâ—tment so that what is competent against the Cedent in Tacks is competent against the Assigney except as to the manner of Probation by the Cedents Oath December 18. 1668. Swintoun contra Brown Assigneys were found to have Right to an Annualrent granted by a Father to his Daughter and her Heirs without mention of Assigneys though her Brothers and Sisters were substitute failing the Heirs of her Body and though the Assignation was granted without a cause onerous to another Brother Iâ—â—e 24. 1669. Steuart contra Stâ—uart An Assignation without Intimation was preferred to an Executor Creditor of the Cedent even as to the Executors own debt Iuly 27. 1669. Executors of Redpeth contra Iohnstoun AN ATTESTER of a Cautioner in a Suspension declaring that the Cautioner was sufficient being conveened Subsidiarie was found to be no further lyable than that the Cautioner then was holden as sufficient for the Sum Charged for December 17. 1667. Paterson contra Hume A BAILLIE of Regality amerciating Parties for a wrong committed in the thrusting out of others out of a Seat in the Church in time of Divine Service and beating of them his Decreet was Sustained though it extended to two hundred pounds half to the Party and half to the Fiscal Ianuary 30. 1663. Steuart contra Bogglâ— and Matthie A Baillie of a Barony of Kirkland being Infeft by the Abbots with full Iurisdiction Civil and Criminal with power to Repledge and with power to apply the whole amerciaments and Casualities to his own behove his Right was found not to be derogate from or prejudged by the Kings Erecting a part of that Barony in a Burgh Royal and giving them power of Heading and Hanging and all Iurisdiction unless they extinguished the Baillies Right by Prescription albeit it did not appear that these Kirklands were Erected in a Regality no mention being made thereof in the Infeftment of Bailliarie nor was it commonly known under that Title February 27. 1667. Lord Colvil contra Town of Culross A Baillie of Regality was found to have power to amerciat the Inhabitants of a Burgh of Regality though having Baillies of their own in the Burgh in respect the Burgh being Vassals to the Baron their power is cumulative and not exclusive of his Iurisdiction but there is place for prevention to the first Attatcher doing diligence Ianuary 14. 1668. The Baillie of Regality of Killimuire contra Burgh of Killimuire BAIRNS Provisions being upon Bond subscribed by their Father but not delivered till he had disponed his whole Estate to his eldest Son with Warrandice from his own deeds done or to be done and reserving his Liferent of a part which was found sufficient to Reduce the Bonds of Provision and Appryzing thereupon as not obligator till delivery or the death of the Father and Revocked indirectly by the Sons Disposition Ianuary 10. 1668. Laird of Glencorse contra his Brothers and Sisters A Bairns provision posterior in date and delivery to a Creditors debt the Creditors Appryzing though posterior was preferred in a Reduction to the
declarator of Distress or Eviction but a pursuit of Removing or Mails and Duties upon Eviction is sufficient which cannot be excluded by a possessory judgement upon 7. years Possession by the publick Infeftment unless it were 7. years after the Eviction February 20. 1668. Forbes contra Innes Base Infeftments granted by a Father to his two Sons of the same date one of Property of Lands and another of annualrent forth thereof was found both valide as being cled with the Fathers possession reserved in both there being no suspition of defraud of Creditors or competition with them and that a singular Successor appryzing and Infeft from the one was not preferable to a posterior Adjudger from the other Iune 30. 1668. Chem contra Chrisly A base Infeftment of annualrent was found validate by Possession upon another Infeftment of annualrent in corroboration of the former out of distinct Lands whereby both Infeftments as to both Lands were found valide though no payment was made by the Debitor or by the Tennents in the first Infeftment Iuly 9. 1668. Alexander contra the Laird of Clackmannan A base Infeftment to a Creditor was preferred to a posterior publick Infeftment granted to a Wife by an additional Ioynture in respect there was a Citation on the base Infeftment anterior to the Wifes publick Infeftment which was found to validate the same and sentence of preference of poynding of the Ground was now granted therein Ianuary 27. 1669. Bell of Belfoord contra Lady Rutherâ—oord A base Infeftment never cled with Possession was found valide to exclude the Terce of the granters Relict Ibâ—dem A base Infeftment by a Father to his Children was found not validate by the Fathers Possession wherein he continued albeit he had a Factory from the Children here it was not alleadged that the Father had granted Discharges or used Citation expresly relative to the Factory Iuly 10. 1669. Gairdiner contra Colvil BASTARDY being gifted by the Vsurpers defends the Bastards Debitors no further than what they bona fide payed to the Donator but not for what was yet in their hands which belongs to the Kings Donator Iuly 19. 166â— Windrham contra Megregors Bastardy was found not to be relevantly Libelled that the Defuncts Father and Mother were not Married but that it behoved to be alleadged that the Defunct was commonly holden and repute Bastard But that it was also sufficient that the Defuncts taking a Legitimation had acknowledged his Bastardy February 19. 1669. Kings Advocate contra Craw. Bastardy was found not to be inferred by the negative presumption that the Father and the Mother were not Married but that it behoved to be proven positive that the Defunct was holden and repute Bastard Iune 15. 1670. Livingstoun contra Burn. Bastardy puts the Donator to no better case as to Back-bonds or mutual Obligements than the Bastard his Heir would have been in Iune 20. 1671. Alexander contra Lord Saâ—toun BEHAVING AS HEIR by intrometting with the Mails and Duties of the Defuncts Lands was elided because the Defender intrometted singulari titulo by an Appryzing though the Legal was not expired unless it had been clearly satisfied by intromission or otherwise Ianuary 10. 1662. Barclay contra Laird of Craigivar Behaving as Heir was found in no time coming to be â—lided by taking Right to any Appryzing or Adjudication led against the Intrometters for their own Debt real or simulate though such Rights were expired February 28. 1662. Act of Sederunt Vide Ianuary 22. 1662. Glendoning contra Earl of Nithisdail Behaving as Heir was not inferred by Inâ—romission with the Rents of the Lands which were disponed by the Defunct and Infeftment thereon but to the behove of the Defender the appearand Heir Ianuary 14. 1662. Harper contra Hume of Plandergaist Behaving as Heir was inferred by the appearand Heir his inâ—rometting with the Rents of Lands belonging to his Father the Debitor in so far as being disponed to the Defender they were Redeemed by him though no Declarator or new Infeftment followed and also found by intrometting with the Fathers whole Silver-work without alleadging a formal drawing of the Heirship or taking any of them as such and though the Lands were Appryzed from the Defunct seing the Legal was un-expired and the Defender had no Right from the Appryzer February 21. 1663. Hamiltoun contra Hamiltoun Behaving as Heir by intrometting with Heirship was not â—lided because the Defuncts Lands were apprized seing the Legal was not expired before his death February 26. 1663. Cuthbert of Drakies contra Mâ—nro of Foulis Behaving as Heir was not â—nferred by intromission with the Rents of the Defuncts Lands which were appryzed and whereunto the appearand Heir acquired Right before he fell to be apparent Heir though he continued to possess after the appryzing was satisfied by intromission February 26. 1663. Inter cosdem Behaving as Heir was elided as to Heirship because the Defunct dyed Rebel and his Escheat was gifted and declared Ibidem Behaving as Heir by medling with heirship was not elided because the Defunct dyed at the Horn and thereby nihil habuit in bonis nor yet that the Escheat was gifted before intenting of this cause but that it was gifted and declared before Iune 10. 1663. Gordoun of Lâ—smore contra Keith Behaving as Heir was elided because the Defunct was Rebel his Escheat gifted and the appearand Heir intrometted by the Donators Rights or Tollerance and that before intenting of the Cause albeit no declarator thereon Iuly 4. 1665. Innes contra Wilson Behaving as Heir was not Sustained upon Intromission had by a Tutor November 30. 1665. Boyd contra Tâ—lziâ—er Behaving as Heir was not Sustained by Heirs of Line their Renuncing to be Heirs in favours of the Heir-male to whom the Father had disponed seing they gave no Right thereby hurtful to Creditors but gave a Renunciation voluntarly which Law would have compelled them to give though for their kindness they got a sum of Money Iuly 5. 1666. Scot contra Heirs of Auchinleck Behaving as Heir by Intromission with the Rents of the Defuncts Lands was elided by Tollerance from a Donator of Recognition albeit not declared till after the Intromission the Defender paying the single value Iuly 17. 1666. Ogilby contra Lord Gray Behaving as Heir by intromission with the Duties of the Defuncts Lands was elided by a Disposition from the Defunct to the Intrometters Son the Defuncts oye though without Infeftment or by a Tack by the apparent Heirs Husband though expired before the Defuncts death as continuing per tacitam relocationem Ianuary 16. 1667. Reâ—d contra Salmond Behaving as Heir was Sustained by Exception Ianuary 8. 1668. Forbes contra Innes Behaving as Heir was found to be instructed by a Discharge granted by the Party as appearand Heir bearing receipt of the Defuncts Charter Chist without any Inventary or Protestation and keeping of it two years without necessity to alleadge that any use was made of the Writs but was not inferred by raising
found not to take away the Reversion from the consenter who then had no present Right the Reversion being conceived to another person and the Heirs of his Body which failing to that consenter and that person being then alive so that the consenter falling thereafter to be Heir of Tailzie in the Reversion was not excluded by his consent from Redemption February 23. 1667. Earl of Errol contra Hay of Crimmonmogate Here the consenter was not obliged for Warrandice Consent without Warrandice to a Disposition imports only such Right as thâ— consenter then had but for no other supervenient Ianuary 8. 1668. Forbes contra Inneâ— Consent of a Superiour to a Wodseâ— and Eke was found to carry the Liferent Escheat of the Vassal then in the Superiours hand and to exclude a gift by the Superiour of the same date with his consent seing the gift required declarator to make it effectual and the consent 〈◊〉 not Iune 19. 1669. Scot contra Langtoun Consent of parties to a Decreet of the Lords bearing the particular Terms of an agreement and a Decreet thereupon Extracted the same was Sustained in respect of the offer of a Disposition by the Accepter who now quarrelled the Decreet as having a Warrand for his consent under his hand the offer being simple provided the same were instructed by the Oathes of the Witnesses insert in the Instrument of offer February 4. 1671. Lawrie contra Gibson CONSIGNED SVMS cannot be affâ—cted by arrestment or Escheat for the consigners debt but belong only to the Wodsetter Iune 29. 1661. Telzâ—â—er contra Maxtoun and Cunninghame Consigned sums in the hands of the Clerk to the Bills for obtaining Suspension was found not to be upon the peril of the consigner unless he were in the fault and therefore the consigner having first oâ—â—ered by Instrument the principal sum and Annualrent and so much of the penalty as the charger would depone upon Oath that he truely debursed and the instrument being instructed by the Oaths of the Witnesses insert the consigner was declared free though the then Clerk of the Bills was become insolvent Iuly 28. 1665. Scot contra Somervel Consigned Sums being lifted by the consigner he was found lyable to produce the same with Annualrent since he lifted the same though he offered to depone he had keeped them by him and had made no profiâ—e and that the consignation was not by his fault Ianuary 14. 166â— Mcpherson contra Wedderburn of Kingeme Consignation being truely and formally made and the Wodsetter truely in the fault that received not his Money he was only found to have right to his Annualrent after the consignation and not to the Rents of the Lands though he continued five years in possession before declarator and that the Sum was taken up by the Redeemer upon whose peril the consignation was being now produced by him at the Bar with Annualrent since the consignation February 24. 1670. Ierdâ—â—n of Applegirth contra Iohnstoun of Lockerbie Consigned Sums for Redemption being taken up and Annualrent craved therefore since the consignation the taking up thereof was found probable by the consignator and clerks oaths the consigner being dead February 14. 1671. Inter eosdem CONTINVATION was not found necessary in a declarator of Redemption though not instantly verified February 19. 1662. children of Wolmâ—t contra Ker. Vide Improbation Laird of Auchinbreck contra Continuation was found necessary in Summonds for making Arrested Goods forthcoming albeit accessory to a Decreet seing they were not priviledged by deliverance as they would have been upon that ground if it had been demanded in the Bill November 28. 1665. Bruce contra Earl of Mortoun Continuation was not found necessary to a declarator of Bastardy but that in favorem fisci upon a single Summonds it might be proven that the defunct was repute Bastard as in declarators of Nonentry the death of the Vassal may be proven without continuation Iune 15. 1670. Livingstoun contra Barns A CONTRACT was found effectuall to a third party not contracting in whose favours an article to pay the debt due to him was found sufficient and not to be discharged by the contracter seing the bargain followed Iuly 7. 1664. Ogilbie contra Grant and Ker. A contract of Marriage by which the Wife declared her self to have a Sum and contracted the Sum to the Husband was found to give her no interest to the implement of the Husbands part till she instructed her part to be fulfilled which was not presumed to have been performed though after a long time without some Adminicles Iuly 26. 1665. Brotherstones contra Ogle and Orrock A contract of marriage beaâ—ing a general clause whereby the Husband renunceth his jus mariti in the means of the Wife and all other Right he could have thereto by the subsequent Marriage was found not to take away a Right granted before the contract whereby in contemplation of the Marriage the Wife disponed her Liferent in Trust and took a back-bond that the benefite of it should be for intertaining the Wife and her future Husbands Family joyntly both being esteemed as parts of the same Treaty of Marriage and the general clause in the contract of Marriage not to be derogatory thereto February 9. 1667. Ratho and Colingtoun contra Tennents of Innâ—rtilâ— and Lady Collingtoun A contract of Marriage providing the Moveables of either party to return after the Marriage in case there were no children was found effectual to the Wifes Assignays and that the same did not return to the Husband by his jur maritâ— or was not inconsistent therewith Iune 30. 1670. Greigâ— contra Weims A contract of Marriage by minute being craved to be declared void as to the payment of the Tocher because the mutual obligements therein could not be fulfilled The Lords liberate the Pursuer he Renuncing the obligements on the other side Iuly 13. 1670. Raith and Wauchop of Edmonstoun contra Wolmet and Major Biggar A contraâ—t of Marriage whereby a Father disponed his whole Estate in Fee to his Son and got the Tocher was â—ound not to annul a Bond of provision granted by the Son to the Father for his Bairns provisioâ—s after the Contract and before the Marriage as contra pacta dotalia but upon Examination of the Witnesses it being found communed that the Tocher should suffice for the Bairns Provisions and that by the new Bond there would little have â—emained to the Married persons The Lords Reduced the Bond Ianuary 21. 1668. Patoun contra Patoun Contract of Marriage vid. Clause IN CONTRARY alleadgances of Minority and Majority neither party was preferred to Probation but Witnesses and Adminicles were admitted hinc â—nde that the Lords might follow the strongest and clearest Probation February 20. 1668. Farquhare of Tonley contra Gordoun CONTRAVENTION was Sustained upon several times Herding for a considerable space together by the Defenders Herds at his command on the Pursuers Ground uncontroverted reserving to the Lords whether to make every special Pasturing a several
principally but by a third party Iuly 5. 1662. Drummond contra Campbel A DESIGNATION of a Gleib by way of Instrument of a Nottar was not Sustained without Production of the Testificate of the Ministers Designers December 17. 1664. Paterson contra Watson Designations of Gleibs must first be of Parsons before Bishops Lands though they were Feued before the Act anent Manses and Gleibs and built with Houses so that the Feuar must purchase as much ere the other Kirk Lands be affected Ianuary 25. 1665. Parson of Dysart contra Watson Designation of one to be Tutor Testamentar by his own acknowledgement was found not to prove against him where by the Testament the contrary appeared Iune 10. 1665. Swinâ—â—â—n contra Notman Designation of a Manse was Sustained by Intimation out of the Pulpit or at the Kirk door warning the Heretors thereto as being the constant custom though some of the most considerable were ouâ— of the Countrey Ianuary 28. 1668. Minister of Hassendene contra Duke of Bucclâ—â—gh Designation of a Gleib was Sustained though done but by two Ministers the Bishops Warrand being to three without 〈◊〉 Quâ—runâ— unless weighty reasons upon the prejudice of parties were shown February 7. 1668. Minister of Cockburnspeâ—h contra his Parochioners DEVASTATION total was found to Liberate from publick Maintainance February 20. 1663. Baxters of Edinburgh contra Heretors of Eastlouthian DILIGENCE was not required of a Person whose Name was not intrusted in the Infeftment of Annualrent to make him Comptable for ommisâ—ion but only for intromission December 18. 1666. Cass contra Wat. A DISCHARGE to one of more Contutors was â—ound not to Liberate the rest except in so far as satisfaction was given by the Party discharged or in so far as the other Contutors would be excluded from Recourse against the Party Discharged December 19. 1668. Seatoun contra Seatoun A Discharge of Rent not designing the Writer thereof was found null unless the user thereof designed the Writer because it was of 80. pounds of Annualrent yearly and that thereby an Infeftment of Annualrent would be cled with Possession and preferred to another Annualrent Iuly 14. 1665. Scot contra Silvertounâ—il A Discharge being general was found not to extend to a Sum Assigned by the Discharger before the Discharge albeit it was not intimate before unless it were proven that payment was truly made for this sum February 3. 1671. Blair of Bagillo contra Blair of Denhead A DISPOSITION of Moveables was preferred to an Arrestment on an horning anterior to the Delivery seing the Disposition was before the Horning and the delivery before the Arrestment Iuly â— 1662. Bouse contra Baillie Iohnstoâ—â— A Disposition was Reduced on the Act of Parliament 1621. as in fraudem creditorum though the Disponer was not Bankrupt and that he had reserved the power of a considerable sum to sell Land to pay his debt which the Creditors might affect seing the Creditors ought to have Preference according to their Legal diligence on the whole Estate till payment February 6. 1663. Lord Lour contra Earl of Dundee Dispositions of Heretable Rights are only Reducable upon the Act of Parliament against Bankrupts and not by exception or reply though betwixt Father and Son in re parvi momenti viz. 100. pounds Iune 19. 1663. Reid contra Harper A Disposition by a Husband to his Wife of an additional Ioynture she being sufficiently provided before was found Reduceable at the instance of anterior Creditors albeit the Husband was no Bankrupt but because he had no Estate un-liferented or affected albeit the Reversion was much more worth nor the Creditors Sums but the Relick offering to purge the prejudice by admitting the Creditor who had appryzed to possess Lands equivalent to his Annualrent he Assigning to the Relick what he was satisfied by the Ioynture Lands and with this provision that if the Legal expired she should not be absolutely excluded The Lords found the offer sufficient February 10. 1665. Lady Craig and Greenhead contra Lord Loure A Disposition omnium bonorum without any cause onerous and without delivery was found not sufficient to exclude the necessity of Confirmation and paying of the Quote Iune 23. 1665. Procurator-fiscal of the Commissariot of Edinburgh contra Fairholm A Disposition omnium bonorum though with possession was â—ound not to exclude the Quote and Confirmation seing it bear a â—eversion to the Disponer during his Life to dispone of the Goods notwithstanding Iuly 4. 1665. Commissar of Saint Andrews contra Laird of Bousie A Disposition of Land was found to carry all Right that was in the Disponers Person and to import an Assignation to a Reversion which needed not intimation seing the Seasine was Registrat in the Register of Seasines December 5. 1665. Beg contra Beg. A Disposition of Lands was found imported by an Assignation to the Mails and Duties in all time coming against the Heir of him that granted that Right and that the Heir was obliged to renew a compleat legal Disposition with a Procuratory of Resignation and Precept of Seasine Iuly 2. 1667. Sinclar of Hirdmanstoun contra Cowper A Disposition by one Brother to another of his whole Estate bearing for satisfying of his debts enumerat and containing a power to the Purchaser to satisfie what debts he pleased and to prefer them was found valide and not fraudulent in so far as extended to the Purchasers own Sums due to him and for which he was Cautioner for his Brother as if it had born these to be paid primo loco and thereupon one of the Creditors whose debt was enumerat in the Disposition was postponed to the Acquirers own debt and cautionry till they were first satisfied Ianuary 8. 1669. Captain Newman contra Tennents of White-hill and Mr. Iohn Prestoun A Disposition was Reduced because given by a weak person to him who was lately her Tutor ante redditas rationes and done of the same date with a Contract of Marriage whereby she was married to his Nephew who got the Disposition and died ere he was Married albeit he who got the Disposition was her Mothers Brother who Educat and Alimeâ—â—ed her and the Pursuer of the Reduction was her Grand-Fathers Brothers Son who had not noticed her but she was an ignorant person half deaf February 18. 1669. French contra Watson A Disposition of Moveables in Writ bearing onerous causes expressing a Sum and others generally was fouâ—â— not to prove the cause onerous by the Narrative being 〈◊〉 dulent leaving nothing to other Creditors nor 〈…〉 by the Acquirers Oath but also by the Oaths of the 〈◊〉 whom payment was made November 18. 1669. Henderson contra Anderson A Disposition of Lands bearing the Buyers Entry to be at Whitsonday and to the Cropt of that year was found not to extend to the Cropt of Corn that was Sowen and standing on the Ground that year the time of the Buyers Entry or to any part of the Rent payable for the Land fâ—om the Whitsunday before
as the rest of his children or else to pay a Modification for his aliment albeit the Father was indigent seing the Son had no Means or Calling to aliment himself Ianuary 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family not only in his Pupillarity but Minority as curatorâ— honorarius not lyable to oâ—â—mission or exclusive to other Curators but deeds done without his consent were found null albeit his Son resided not in his Family but followed the Law living still on his Fathers charges and having no Calling or Patrimony to maintain himself neither was his Fathers Subscribing with him found a sufficient authorizing of him seing he subscribed with him as Cautioner for him December 7. 1666. Menzeis contra Fairholme A Father taking a Bond blank in the Creditors Name and filling up his Brothers Name therein and obtaining an Assignation from him to his daughter was not found as a Bond of Provision Revockable by the Father in respect the Bond was Registrate in the Brothers Name November 20. 1667. Executors of Trotter contra Trotter A Father was not found obliged for Annualrent of a Legacy uplifted by him belonging to his Son as being his Tutor of Law the Son being Alimented by the Father and in his Family December 15. 1668. Windrham contra Eleâ—s A Father granting Bond to a Bairn in satisfaction of her Portion Natural was found thereby to increass the Bairns part of the rest of the Bairns and not to apply that Bairns part to the Heir Executor or universal Legator as they who were obliged for the Bond of Provision comprehending the Bairns part February 17. 1671. Megil contra Viscount of Oxenfoord A FEW containing a clause irritant expreslyâ— to be null upon the Failzle was found not to be purged at the Bar where offer of payment was made in which it differs from a Feu not having that clause February 13. 1666. Laird of Wedderburn contra Wardlaw Feus of Ward-lands granted before the Act of Parliament 1666. against Feus was found valide albeit granted by these who held Ward of Subjects without consent of their Superiour Iune 24. 1668. Steuart of Torrence contra Feuers of Ernoch A Feu was found to be Renunceable by a Feuer to free him of the Feu-duty albeit it was constitute by a muâ—ual contract obliging the Feuer and his Heirs to pay the Feu-duty yearly seing by a Back-bond of the same date he was allowed to Renunce when he pleased which was found effectual to take away that personal obligement being extrinsick to the Feu though in the Feudal Contract against a singular Successor in the Feu February 1. 1669. Brown contra Sibbald A FEW-Dâ—VTY was found personally to affect a Liferenter for these years only whereof she lifted the Rent Iuly 19. 1665. Windrham contra the Lady Idingtoun FOREFAVLTVRE of a Paricide as having killed his own Mother being gifted by the King and Infeftment thereon was found to have no effect unless there had been a doom of Forefaulture pronunced by the Iustices but not upon the ordinary course against absents declaring parties Fugitives for not underlying the Law which can only reach their Moveables Iuly 30. 1662. Zeaman contra Oliphant Forefaulture having with it dishabilitation of the Forefault persons Children declaring them incapable of Lands or Estate in Scotland whereby the Sons Estate fell in the Kings hand and was disponed to a donatar who set Tacks and the Son being restored by Sentence of Parliament as an Infant not accessory to the Crime The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction and declaring Rights granted medio tempore by the King to be valide which was not found to extend to dishabilitation of the Children but to the principal Forefalture February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn Here both the dishabilitation and remission thereof proceeded without citation Forefalture and five years possession of the Forefalt person before the Forefalture makes a valide Right notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions c. Yet interruption within the five years was found to elide the same by Inhibition and granting a new Corroborative Right especially where citation was used immediatly before the five years albeit the corroborative Right was post commissum crimen Iuly 23. 1666. Earl of Southesk contra Marquess of Huntly Forefalture and five years possession was found not Relevant by exception or reply without a reâ—our by an Inquest Iune 13. 1666. Hume contra Hume Forefalture gives the King or his Donator five years Rent of any Land the Forefalt person was in possession off the time of the Sentence whether by Tack or not Ianuary 24. 1667. Inter eosdem In Forefalture a donatar was found excluded by Appryzing at the instance of the Creditors of the Forefalt person who had comprized before the committing of the Crime and had charged the Superiour after the crime but before the Process of Forefalture Iuly 6. 1667. Creditors of Hume of Kâ—llo contra Hume The Donatar of Forefalture pursuing Removing was found not to be excluded by an Inâ—eâ—tment on an Appryzing granted by the King being then immediate Superiour before the Gift which was not found equivalent to a Confirmation but past in Exchequer of course without notice December 9. 1668. Earl of Argile contra Stirling Forefalture was found to exclude a Creditor founding upon a clause in the disposition made to the Forefalt Person by his Father reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum though the Father had granted a Bond to the Pursuer declaring the sum to be a part of the Reservation seing there followed no Infeftment by Resignation or Confirmation by the King Iuly 12. 1671. Learmoâ—th contra Earl of Lauderdail Forefalture Vide Gift Hague contra Moscrop and Rutherfoord FRAVD of Creditors being insisted on to Reduce an additional Ioynture after the debt appryzed on the Liferenter offering access to the Appryzer for his Annualrent and to be totally excluded if it were not Redeemed within the Legal it was Sustained Relevant here the Husband was neither bankrupt nor insolvent but there was no ready execution because of the additional Ioynture February 10. 1669. Lady Greenhead contra Lord Lour Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction though of a disposition by a Father to a Son in a small matter Iune 19. 1663. Red contra Harper Fraud of Creditors was not inferred by a clause in a Contract providing a Ioynture to a Wife with condition of restricking her self to a part that the superplus might belong to the Bairns for their Aliment the whole Ioynture being only proportionable to the condition of the parties November 16.
by the Seasine but deponed it was in Summer where the Seasine bear in Winter was improven though the Nottar offered to abide by it but the Lords refused to Examine him or any extrinsick Witness in respect the Seasine had no Warrand in writ Ianuary 9. 1669. Wallace of 〈◊〉 contra â—lâ—kerrel A Seasine propriis manibus by a Father to his Son reseving his Fathers Liferent was found valide against a second Wifes Infeftment in the same Lands though granted for a competent Tocher albeit the Seasine had but two Witnesâ—es and had no Disposition or Precept to Warrand it but an Adminicle viz. a Bond by the Father of the same date obliging him to warrand the Seasine and that it was not a fraudulent â—atent deed it being Registrate nor was it alterable by the Father as a Bairns portion February 11. 1669. Buchan contra Taits SERVICE of Harrage and Carriage in a 〈◊〉 was â—ound not due but when demanded within the year Iune 27. 1662. Watson contra Eleis SERVITVDE of Fail and Divot Clay and Stone granted in a Muire definitely where there was no pasâ—urage therewith was found not to hinder the Proprietar of the Muire to Plew and rive out a parâ— where there was more leâ—t then was like to serve the use of the Servitude â—or ever yet so as if it should happen at any time thereafter not to suffice a part of that riven out should be laid â—ee for the same purpose in this respect was had to the publick utility the whole Muire being otherwayes improfiâ—able and the restriction was not allowed till the Muire was actually riven out and plâ—wed Iune 21. 1667. Watson contra Feuers of Dunkeir A Servitude of putting over a Miln Damn upon other mens ground was â—ound not constiâ—ute without his consent though he shew no detriment to him thereby Iune 22. 1667. Hay of Strowiâ— contra Feuers A Servitude of common pasturage though if ordinarly carry Fail and Divot yet if by cuâ—â—ome Fail and Divot be excluded and hindered it is â—ot excluded February 15. 1668. Laird of Haining contra Town of Seâ—kirk SIMVLATION of a Gift of Eâ—cheat was inferred upon the Act of Parliament 1592. because the Rebel was suffered to possess four or five years in which 〈◊〉 were patent albeit the Donatar obtained gâ—neral declarator long before and was himself a lawful Creditor and that the Lands were appryzed before the Rebellion seing the Appryzer possessed not but the Rebel Ianuary 9. 1666. Oliphant contra Drummond Simulation of a gift of Liferent Escheat was â—ound probable by the Superiour and Witnesses insert in the gift their oathes that it was to the Rebels behove Iune 19. 1669. Scot contra Langtoun Simulation of a gift of Liferent taken by a party who had bought Lands for securing himself in respect the Sellers Escheat was â—â—llen was not inferred by allowing the Expenses of the Gift in the price of the Land which the Seller was obliged to warrand seing he did not extend the gift any further than to the Lands bought to himself unless it were proven he knew of the other party competing his Right that it was perfected before he took the other Disposition of the same Lands and thereby was particeps fraudis with the Seller who granted double Dispositions 22. 1669. Hamiltoun of Corsse contra Hamiltoun and Viscount of Frendraught Simulation of a Gift of Escheat and Liferent was not inferred because it was granted to the Rebels Son who was not in his Family but had means of his own nor that the Father continued in possession for sometime after Declarator nor were the members of Exchequer admitted to prove that the Gift was procured by the Fathers means and moyen seing the Son gave Back-bond that being satisfied of the debt in the Horning his own debt and expenses of the gift there should be place to the Rebels Crediâ—ors and did make Faith at the passing of the Gift that it was to his own behove December 4. 1669. â—â—ffrey contra Doctor 〈◊〉 Simulation of a Giâ—t of Liâ—erent was inferred from the Rebels obtaining the gift bâ—ank in the Donatars Name which being in his hand and delivered to a Creditor for security of a just debt the same was found null even as to him December 17. 1670. Langtoun contra Scot A SINGVLAR SVCCESSOR was not found lyable for publick burdens imposed by Committees of Parliament Ratified in Parliament Iuly 13. 1664. Grahame of Hiltoun contra Heretors of Claâ—kmannan Shire SLANDER Vide Commissaries IN A SPECIAL DECLARATOR of Escheaâ— the payment of the debt before denunciation was â—ound relevant upon the Creditors Oath but Nullity of the Horning upon informality of Process was found not relevant seing these purged not the Contempt and Disobedience in not paying or suspending February 10. 1663. Montgomrie contra Montgomrie and Lawder in this case the alleadgeaâ—ce on the Back-bond granted to the Thesaurer by the Donatar in favours of the Creditors was not found relevant without a second gift or warrand from the Thesaurer SP VILZIE was elided by Disposition and Instrument of possession though it was omnium bonorum and no natural possession â—ollowed for two years seing there was no forcible resistance Ianuary 29. 1662 Irwing contra Mâ—kartnay In a spuilzie many persons being called as accessory there being on others whereby the Defender might prove his Defense The Lords declared if the pursuer insisted against them all they would ordain him first to insist against the accessories that such as were assoilzied might be Witnesses February 24. 1662. Inter eosdem Spuilzie of Teinds was not elided by ther 15 and 17. Acts of Parliament 1633. Declaring the Teinds to be the fifth part of the Rents and that every Heretor shall have their own Teind until valuation be intented December 18. 1662. Lord Balmerino contra the Town of Edinburgh Spuilzie noâ— being pursued â—ithin three years can only be pursued thereafter as wrongous intromission and the parties are not lyable in solidum but if all be proven intromettors they are lyable equally as being all presumed to have equally intrometted unless the greater intromission of some of them be prove m Ianuary 17. 1668. Strachan contra Morison A Spuilzie was not elided by a poinding though one offered to make Faith the Goods were anothers then the debitors not being offered by himself his Servant or by his Commission seing that partie had a Disposition with an instrument of possession and several Acts alleadged oâ— his natâ—ral possession from whom the Goods were poinded Iuly 6. 1666. Corbet contra Stirling Spuilzie of Oxen the Pursuers had in the Pleugh four moneths was elided because the Defenders had intrometted with them by an order of the Sheriâ—â— execute by his Officers as being stollen Goods though there was no citation of paâ—â—ies for obtaining the warrand which might be summarly used for recovering of Goods notwithstanding of 4. moneths peaceable possession unless with the possession the pursuer should instruct a lawful and onerous
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these