Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
Executa if there be another nearer to the first Defunct To consider the Civil Law as to Haeres cum beneficio Inventarij If an Executor be not Haeres in mobilibus cum beneficio Inventarij Executor Creditor A Creditor being confirmed Executor and dying before the Testament be Executed Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors in respect of the Diligence of his Predecessor and that Confirmation did affect the Goods for their satisfaction Three Creditors being confirmed for their Respective Debts and one of them deceasing before Sentence Quaeritur Will the Office and benefite belong to the Survivers entirely Ratio Dubitandi A Testament Creditor is a Diligence and there is no other way of Diligence to affect the Moveable Estate of a person deceased and it is equivalent to diligence against Debitors on Life affecting their Moveables And on the other part Executory being an Office the Law preferreth the Creditor If the nearest of Kin do not own it But cum sua causa and so that the nature of the thing is not altered And therefore the Executor dying the Office and Diligence doth evanish Quid juris in the case of an Executor Creditor If after he is satisfied the nearest of Kin will have an Action for the superplus If a Testament be Execute by a Sentence against the Debitors though payment be not made Vide Hope Executor Nominate IF an Executor Nominate be Lyable as a Tutor not only for what is confirmed but what he might have confirmed and intrometted with Tweeddale contra D. of Monmouth Executory WHether Vniversitas bonorum That is an illiquid Right Though the Subject may consist of Moveables as a single Escheat Conquest Society as to a Trade or Shipping Will fall under Executry If Casualities of Ward Liferent Escheat Non-entry Marriage will fall under the same Or to the Superiors Heir There being a Bargain of Lands in nudis finibus contractûs vel Dispositionis will the Price belong to the Heir who must perfect the Bargain Answer It is thought not Seing the Price is a Moveable Sum And it appears that the Defunct having sold the Lands had use for it and did intend to uplift it Whether a Gift of single Escheat will fall under Executry or belong to the Heir Ratio Dubitandi That the Escheat is jus Vniversitatis And nothing is in use to be confirmed but either particular Moveables or Debts and plenishing estimate in cumulo Item Whether a Gift of Liferent Escheat which as to the Donator is a Moveable Interest will fall under Executry Ratio Dubitandi As in the former And likewise that during the Liferenters Lifetime it cannot be construed what it will amount to And it has Tractum futuri temporis The same Question may be as to a Tack Assigned Whether the Heir who has Right to a going Coal will have Right to Buckets Chains and other Instruments as being accessoria and destination addicted to the Coal as the Colliers Or if they will fall under Executry A Person being about the building of an House And the samen being begun and certain Materials as Stone Lime Slats and others being prepared o that use Whether will they belong to the Heir for the reason foresaid or fall under Executry A Daughter having accepted her Tocher and Provision by Contract of Marriage in satisfaction of what might fall to her either by her Father or Mothers Decease The Contract of Marriage being after her Mothers Decease Quaeritur If another Sister will have the Mothers part entire without respect to her Sisters Interest being renounced as said is Ratio Dubitandi That the Father who is Lyable for his Wifes Third is in Effect Discharged as to his other Daughters part of the samen And on the other part the Mothers part belonging to her Children non jure Legitima as Bairns but as Executors and representing her If any of them Decease before Confirmation or be unwilling to confirm their Renounciation will be ineffectual as by a person not having Right Quaeritur If the the Sister who is not Excluded should confirm If the Sister who is Excluded as said is may at least have Action against her for her part of the Mothers part To the effect that the Discharge in favours of her Father may be effectual It is Answered That unless she be confirmed her self she can have no part of that which belonged to her Mother And albeit by the Act of Parliament anent Executors Nominate the nearest of Kin has Action for the superplus of the Deads part exceeding the third That is only in the case therein mentioned the said Act giving Condictionem ex lege in that case only Whereas that Act doth not militate in other cases where there is no legitime but only an Interest to represent which cannot be effectual sine Aditione Confirmation being in effect Aditio in mobilibus Quaeritur If a moveable Escheat will belong to the Executor seing Moveables belong to the Executor and moveable Sums and other moveables fall under the same Answer It is thought that Escheat being Jus Vniversitatis should belong to the Heir Seing not only mobilia do fall under the same but also such Rights and Interests as cannot belong to an Executor as Tacks if they be not Liferent Tacks And it is the stile of Gifts that the Escheat should be holden of his Majesty which does not quadrate and is not proper to be said of such things as belong to the Executor Extent IF the Inquest be warranded to Extend unless there were former Retours upon a Commission to Extend Extinguishment of Rights IF the Heretor of Praedium Dominans acquire the Right of Praedium serviens Whether doth the Right of Servitude extinguish quia res sua nemini servit So that if he sell the Dominans the Servitude doth not revive If the Heretor of Land acquire a Right of Annualrent out of the same Whether or not is the said Right of Annualrent extinguished or suspended only So that it may revive if the Right of Property be taken away by Reduction F. Faculty to alter LAnds being disponed with power to alter without these Words Etiam in Lecto If that Faculty may be used in Lecto A Person having reserved a Power to alter in Lecto May he then use that Power in favours of any other Person than his Heir seing he is not in legitima Potestate as to the disponing an Heretable Interest and on the other Part the Heir has no prejudice Faculty to Dispone BY a Write granted by the Earl of Callender to his Lady he gives her power to dispose of the half of his Estate Quaeritur The said Power being Personal without mention of her Heirs and she not having used the said Faculty If the said Power be Transmissible Found by the Lords That the Earl of Dumfermling as Heir to his Mother had right thereto and he having assigned the same to his Son he recovered
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
Alexander Binnie and to do no deed in prejudice of his Succession She did thereafter Marry and Dispone to her Husband the said Tenements In a pursuit at the instance of her Brother against her and her Husband for his Interest upon the said Bond and for implement thereof The Lords Found that she with consent of her Husband ought to Resign Some of the Lords thought that the import of such obligments is only that the Granter should not alter such TailÈies in favours of other Heirs And that they are not restrained to sell or Dispone for onerous Causes if they should have occasion otherwise they should cease to be Fiars The very Essence of Fee and Propertie consisting in a liberty to Dispone It may be questioned how far the Husband may be lyable to his Wifes obligments before the Marriage For there being a Communion betwixt them only as to mobilia it may appear that he should only be lyable to Movable and Personal Debts Seing penes quem Emolumentum penes eundem Onus but this point was not Debated D. 137. Straquhan contra Morison Eod. die A pursuit for SpuilÈie being restricted to wrongous Intromission It was Alledged that the Defenders are only lyable for their intromission respective in so far as it should be proven that each of them had intromitted at least pro virili and conjunctly It was Replyed that the Defenders being conveened Ex delicto they are lyable in solidum as Correi being all accessorie to the wrong And the pursuit as it is Restricted is not for Intromission simply but wrongous Intromission And though the Pursuer by restricting the Pursuit as said is has precluded himself as to violent profits and juramentum in litem and other consequences of spuilÈie he has not prejudged himself as to that benefit that all who are accessory to the wrong should be lyable in solidum which the Law has introduced upon just ground seing it is impossible in such cases where diverse Persons do intromett to distinguish and prove their intromissions The Lords Found the Defenders lyable Conjunctly Wedderburn Sinclair Straquhan Alteri Lockhart Thoirs D. 138. Pollock contra Pollock Eod. die THe Lords having considered the Renunciation mentioned above 20 of Novem. 1667 Found that it being in favours of the second Marriage and in Effect an Assignation could not accresce to the Granter D. 139. Birnie contra _____ Eod. die MR Andrew Birnie having granted a Bond blank in the Creditors name to his Good-brother Short the Creditors name being thereafter filled up Mr Andrew Birnie suspended upon double poynding against him and another Creditor of Shorts who had thereafter arrested The Lords preferred the Person whose name was filled up In respect he had shown Mr. Andrew the Bond before the arrestment and desired him to satisfie the same though he had not made intimation by way of Instrument This Decision seemeth to justle with that of the 9. November 1665. Jamison contra Tealzifer D. 140. _____ and the Laird of Innes her Husband _____ contra _____ 21. Jan. 1668 THE Laird of Rosyth having provided his Daughter of the first Marriage with the Laird of Innes to 10000. Pounds at her age of Twentie years and there being no obligement for Annualrent The Lords in a Process at her instance for her aliment modified 600. Merks yearly Some were of opinion that the said sum being payable at the foresaid Term the Annualrent of the same should not have been modified for the time thereafter and that she should be in no worse case than if it had been payed D. 141. Shaw contra _____ Eod. die THE Lords Found That a Wife being provided in Lecto by her Husband her provision should be restricted and Sustained as to a Terce she being no otherwise provided before D. 142. Home contra Tailzifer Eod. die AN Exception of Improbation being proponed against a Writ and thereafter Tailzifer of Harycleugh being desired to abide at it he declared that he had gotten it as a true Evident and condescended upon the way he had gotten it and it being alledged that he ought to be positive Whether he would abide at it or not The Lords declared That after probation they would consider how far his using and abiding at the said Write should import against him and if he be in bona fide to use the same D. 143. Dowglas contra Lady Wamphray 22. Janu. 1668. THE Lady Wamphray being provided in an Annualrent out of Lands without respect to a Sors or Stock and being infeft It was Found that she ought to be lyable to Taxations and publick burdens being onera patrimonialia though the said Annualrent was payable to her alswel infeft as not infeft D. 144. Justice contra Stirling 23. Janu. 1668. IN the Case Justice and his Tutors contra Stirling and Cockburne her Husband a Bond being granted to a Husband and his Wife the longest liver and the Heirs betwixt them which FailÈieng to the Heirs of the longest liver And the wife having survived there being only one Child of the Marriage The Lords Found that the Fee of the said Bond belonged to the Husband as dignior persona And that the Child had Right thereto as Heir to him and that the Heirs of the Wife could have no Right after the Childs decease as Heirs of provision to the Child And that the Wife had not the Right of Fee which she pretended to be in suspence until it should be determined by the death of either who should be the last liver D. 145. The Town of Glasglow contra _____ Eod. die THE Town of Glasgow having a Right from the Bishop to the parsonage Teynds pursued a SpuilÈie It was Alledged for some of the Defenders that they possessed by Subtacks from Blantyre Tacksman It was Answered that Certification was granted against the principal Tack and that the Subtacks were void in consequence It was Replyed that the Defenders were not called to the Improbation and that they being in possession the Collusion or negligence of their Author cannot prejudge them The Lords upon a debate amongst themselves Thought that Sub-vassalls being in possession ought to be called in an Improbation against the Vassal their Author because they could not be miskenned being Heretable possessors But as to the Tennants bruiking Lands by tacks or Heretors bruiking by Subtacks their own Teynds They thought that it could not so well be known that they had Right and so were not parties necessary to be called And therefore before Answer they ordained to condescend upon the manner and quality of their possession and whether it was such as the Bishop could not but know Sinclair Lockhart alter Cuninghame D. 146. Simpson contra Adamson 24. January 1668. UPon Report it was Debated among the Lords whether a Decreet of poinding the Ground should interrupt prescription of an Annualrent right being only against the Tennants the Heretor not called Some were of the opinion that the Decreet being null nullum sortitur
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
gratuitously Disponed his Estate In praesentia D. 334. Gibson contra Fife 12. February 1676. A Woman having lent 100 Merks upon a Blank Bond and the same being lost The Debitor was pursued for payment of the said Sum and did confess that he had truly borrowed the Money and granted the Bond Blank and he was willing to pay the same being secured against any pursute at the instance of any person who might have found the said Bond and filled up his own name therein The Lords thought the case to be of great difficulty and import as to the preparative that practice of granting Blank Bonds having become too frequent And resolved in this case to take all possible Tryal by the Debitors Oath and otherwayes of the date and Writers Name and the Witnesses in the said Bond And thereafter to ordain the Debitor to pay upon surety that the Pursuer should relieve him of any Bond that should be found of that date and Sum and writen and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk D. 335. Anderson contra Lowes 15. February 1676. THE Lords in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Write thereinspecified proven by the Adminicles thereinmentioned In praesentia D. 336. Marshal contra Forrest and her Husband eod die IN a pursute at the instance of a Minor against his Tutrix The Pursuer having referred to the Tutrix Oath that she had intrometted with diverse particulars belonging to him The Husband of the Tutrix Alledged that she could not declare in his prejudice It was Replyed That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix he could not be in worse case as to modum probandi by the Tutrix her superinduceing a Husband And that the Intromission of a Relict after her Husbands decease being such as to Money Bonds and many other particulars as could not be known to any person but to her self nor proven but by her own Oath It were hard that the Minor should be prejudged of his Probation by her own Deed And the Husband is not in the case where a Debt is only to be constitute by the Wifes Oath seing the Ground of the Debt is constitute by Write viz. By the Nomination or Letter or Tutory And when there is a pursute against any person that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath and the Minor is more priviledged seing by the Common Law Minors have a tacite hypotheck of their Tutors Estate and by our Law they ought to be favoured at least so far as it should not be in the power of the Tutrix to ruine them by convoleing ad secundas nuptias ante redditas rationes The Lords thought the case considerable And Ordained the Tutrix to declare Reserving to themselves to consider what her Declaration should import Forret Reporter Gibson Clerk D. 337. E. of Dumfermling contra the Earl of Callender 16 February 1676. THE Earl of Dumfermling having Right by Assignation to the Obligements contained in the Contract of Marriage betwixt the deceast Earl of Callender and his Grand-mother in swa far as the same is in favours of the said Lady pursued the said Earl of Callender for Implement of the said Obligements and the Lord Almond now Earl of Callender as having gotten a Right to the said Earl of Callender's Estate with the burden of his Debts and the said Earl in the interim having deceased did insist against this Earl of Callender For whom It was Alledged That the Process ought to be transferred against some representing the said Earl of Callender as Heir of Line or otherways And tho the Pursuers Procurators declared they insisted only against Callender for a Declarator that the Estate disponed to him should be affected with the foresaid Obligement It was urged for Callender That the said Earl's Heirs ought to be called Seing the Declarator against him being a singular Successor that his Lands should be affected was only a subsidiarie Conclusion and could not be sustained before the Debt was constitute and the Debt could not be constitute unless the pretended Debitor or some representing him were called The Lords notwithstanding Found Process and that there were no necessity of calling or transferring against the Heirs of the Debitor Actor Sinclar Bernie and others alteri Lockheart Monro Clerk In Praesentia D. 338. Doctor Borthuick contra the Earl of Crawfurd eod die THE Earl of Crauford having borrowed 8000 merks from the Mother and Grand-mother and two of their Children for themselves and in name and behalf of their said Children he is obliged by his Bond to infeft the said Mother and Grand-mother in Liferent and the said Children in Fie in an Annualrent out of certain Lands but by a mistake the Precept of Seasin contained in the Bond is in favours only of the Mother and Grand-mother and for infefting them as Fiars of the said Annualrent and accordingly they are infeft And yet thereafter the said Mother and Grand-mother acknowledging that the said Infeftment was so taken upon mistake did by a Disposition bearing the Narrative foresaid dispone the Fee in favours of the said Children and there was a Pursute intented at their instance against the said Earl of Craufurd for poinding of the Ground Wherein It was Alledged That the Mother and Grand-mother being only Lifrenters could not resign the Fee which they had not and if the Pursuers made use of their Right from them the Defenders ought to be assoilÈied because the Mother and Grand-mother by a Transaction betwixt the said Earl of Crawfurd and them had accepted the time of the Englishes a parcel of Lands in satisfaction of the said Debt The Lords Found notwithstanding of the said Alledgance that the Pursuers ought to have process for poinding the Ground In respect the Mother and Grand-mother had de facto the Fie in their person upon the said Precept and Seasin And the same being given indebite as said is they might have been compelled to denude themselves thereof and therefore might voluntarly and accordingly did denude themselves thereof and the said Transaction could not prejudge them seing they derived their Right from the said Persons qualificate in respect of their Interest and Error foresaid and they might have been compelled to give the same and the Earl of Crawfurd was not in bona fide to contract with them Seing by the Bond granted by himself they were only Fiars and the other but Liferenters Actor Lockhart and Beaton alteri Cuningham and Suinton Clerk in praesentia D. 339. Doctor Hay contra Alexander 17. Febr. 1676. DOctor Hay his Case 28 January 1675. supra resumed and taken to consideration this day And tho some of the Lords considered that it was hard to canvel Certifications in Pursutes of Improbation after a long Dependence and diverse Terms given to produce and delays of Extracting
Sr. John Nisbet of Dirleton Lord Advocat One of the Senators of the Colledge of Iustice And one of his Maties most honble Privy Council etc. DISCâ—â—E IUSTITIAM D. Paton delin R. White sculp SOME Doubts Questions IN THE LAW Especially of SCOTLAND AS ALSO SOME DECISIONS OF THE LORDS OF COUNCIL and SESSION COLLECTED OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the Principal Matters in the said Decisions EDINBVRGH Printed by GEORGE MOSMAN and are to be sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII ADVERTISEMENT TO THE READER THE Deceast Sir JOHN NISBET of Dirleton His Abilities in the LAWS and generally in all Learning procured him the Employment of Kings Advocate And one of the Lords of Session and other Honourable Places deservedly conferred upon him in the time of His late Majesty King CHARLES the Second His long Practice and profound Knowledge in Our Laws gave the Rise to the following Doubts and Questions Which if he had Lived he would have Answered and Cleared as he has done many of them to the great satisfaction of our Ablest Lawyers and great improvement of our Law The Decisions are What his Leisure from publick Office could allow him to Observe and were ever thought so Succinct and Judicious that most Lawyers were at Pains to cause Copy them from the common Manuscripts though neither full nor Correct which now in the Printing is carefully helped At Edinburgh the fifteenth day of July 1697. Years THE Lords of His Majesties Privy Council Do hereby Grant to George Mosman Stationer Burges of Edinburgh his Heirs or Assigneys The sole Priviledge of Printing and Selling a Book Entituled Some Doubts and Questions of the Law Especially of Scotland As also The Decisions of the Lords of Session Observed by Sir John Nisbet of Dirleton Advocate to His Majesty King CHARLES the Second Together with An Index to the saids Decisions And discharges all other Persons whatsomever to Re-print Vend Sell or Import any of the saids Books for the space of nineteen Years after the day and date hereof under the Pain and Penalty of the Confiscation of the said Books to the said George Mosman for his own use and behoof and of the Sum of an hundred Pounds Scots to be payed by the Re-printers Sellers or Importers of the said Book to the said George Mosman Extracted by Me GILB ELIOT Cls. Sti. Cons LIST OF THE Several Heads of the following Doubts and Questions A. ADjudications page 1 Advocation by the Justices 2. Alimenta 3. Altarage Ib. Annexation to a Barony in another Shire Ib. Annualrent Ib. Annualrent for Damnage 4 Right of Annualrent Ib. Relicts Annuity 5. Annus Vtilis Ib. Appellatio Ib. Appellatio a Camera Imperiali Ib. De Appellatione a Praefecto Praetorio aliorum Judicum sententiis 6. Appellatio a Vicario Ib. Approbatio Ib. Arrestment 7. Arrestment of Conditional Debts 8. Arrestment Loused Ib. Per Aversionem Ib. B. Back-bonds to the Exchequer Ib. Bairns Part. 9. Bond Heritable Ib. Bond Moveable 10. Bonds of Provision to Children Ib. Bond of Relief Ib. Baron Courts 11. Bastard Ib. Bishops 12. Bishops Debts Ib. Bodomaria page Burghs Liferent Escheat Ib. C. Camera Imperialis Ib. Captions Ib. Casualities of Superiority 13. Causa cum qua Res transit Ib. Cautioner and Relief Ib. Chaplainrie Ib. Charge to enter Heir 14. Chattels Real Ib. Children and Creditors Ib. Childrens provisions Ib. Civitas Ib. Clauses in Contracts of Marriage 15. Coals 16. Collation Ib. Commission not to Expire morte Mandatoris 17. Commissioners to the Parliament Ib. Commontes Ib. Common Appendant 18. Communio Ib. Compensation Ib. Composition for Entry 19. Compriser Ib. Comprising Ib. Infeftments upon Comprysing 23. Conditio Ib. Confession by Criminals 24. Confirmation Ib. Confiscation 26. Confusione tollitur obligatio Ib. Conjunct-Fiar 27. Conquest 27. Consensus 28. Consensus Domini Ib. Consent Ib. Anent Consistories Whereby the Usefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are cleared 29. Consolidation 35. Decreets contra Consortes 36. Corporations 37. Creditors of the Defunct Ib. Persons convict of Capital Crimes Ib. Curator Ib. Curatores ad Lites Ib. D. Damnum cum quis utitur Jure suo 38. Death-Bed Ib. Debitor and Creditor 39. Nomina Debitorum Ib. Strangers Debts Ib. Debitum Annuum 40. Debitum in Diem Ib. Decimae Ib. Decreets of the Lords of Session Ib. Deeds both inter Vivos Mortis Causa Ib. Dependence 41. Destination of Succession Ib. Desuetudo Ib. Dies coeptus Ib. Dilapidation Ib. Dishablitation 42. Power to Dispone notwithstanding the giving away the Right of Fee Ib. Dispositio collata in arbitrium alterius Ib. Disposition 43. Actio ad Distractum 43. Division of the Duties of Lands betwixt Buyer and Seller Ib. Donatio inter Virum Vxorem Ib. Donatio mortis Causa 44. Donatio non acceptata Ib. Donators upon Recognition and Forefaulture 45. Duels and Hame-sucken Ib. E. Emancipatio Ib. Contractus Emptionis a Pretio incipiens aut Mensura Ib. What way the Buyer may be urged to Enter Ib. Entry of Assigneys upon Resignation 46. Entry upon Resignation by a singular successor Ib. Liferent Escheat Ib. Escheat single 48. Escheat without Backbond Ib. Delivered Evidents 49. Exception against the Cedent if always competent against the Assigney Ib. Executor Ib. Executor Creditor 52. Executor Nominate Ib. Executory Ib. Extent 54 Extinguishment of Rights Ib. F. Faculty to alter Ib. Faculty to Dispone Ib. Jus Facultatis Ib. Personal Faculty 55. Quae Facultatis sint Ib. Quomodo intelligendum Facultati non praescribi Ib. Faculty reserved to dispone Ib. Fee 56. De Feodo Pecuniae Nominum 57. Feus 67. F uda Nobilia Ib. Fiar Ib. Fiars of Bonds 68. Fiars in TailÈies 69. Fictio Juris 70. Fiscus Ib. Commissa Fisco Ib. Flumina Ib. Flumina Publica Ib. Forfaulture 71 Forisfamiliation 77 Funeral Charges Ib G. Gestio Haeredis 78. Gift Ib. Gift of Escheat with Backbond 79. Gifts of Forefaulture Ib. Gifts of Recognition Ib. Gift of Ward 80. If Gifts of Ward and Non-entry prejudge singular Successors Ib. Goods belonging to the Rebels at the Horn. Ib. Grana crescentia Ib. Great Seal 81. H. Heirs Ib. Behaving as Heirs 82. Heir of Conquest Ib. Discussion of Heirs 83. Heir and Executor Ib. Heirs Male 84. Obligements in Contracts in favours of the Heirs of the Marriage 85. Heirs Portioners 87. Heirs of Provision and substitute Ib. Heirs of TailÈie Ib. Quo casu Heirs of TailÈie may be considered as Creditors 88. Haereditas 89. Aditio haereditatis Ib. Haeres Contrahens Ib. Repudiatio Haereditatis Ib. Servus Haeres Ib. Vltimus Haeres Ib. Heirship Moveable 90. Money consigned for Redemption whether Heritable or Moveable Ib. Sums Heritable or Moveable Ib. Homologation Ib. Horning 91. How far a Husband is lyable for his Wifes Debt Ib. De Hypothecis Vulgo Wadsetts 92. Tacite Hypotheck 94. I.
consent of Persons is required ad integrandam Personam as in the case of Pupils and Minors it ought to be given before their decease in ipso acta But where the consent and confirmation of Persons is ad integrandum constituendum Jus which is constitute and perfected per gradus partes The consent and confirmation may be at any time re integrâ and where there is no medium impedimentum as Exempli Causà If there be a Compriseing against the Disponer the Disposition cannot be confirmed Item sometimes there must be Confirmation neither ad integrandam Personam nor Constitutionem Juris but for confirming the Right constitute as the Popes Confirmation in the Right of Church-Lands or the Patron 's Confirmation which are necessary in regard of their Interests Et ne quid Detrimenti Ecclesia capiat which may be at any time If a Right be confirmed after the Death of the Receiver of the Right and after the Disponers Heir is Infeft upon the Retour Quaeritur If the Heir of the Person who receives the Right may be served Heir to his Predecessor as having dyed last vest and seased notwithstanding that the Right was null the time of his decease and that there is medium impedimentum in the Retour by the Infeftment of the Disponers Heir Answer It is thought he may be served Heir and the said Infeftment is not an impediment the Heirs of the Disponer being eadem persona and in effect his Author And the said Infeftment is in effect to the use and behoof of the Receiver of the Right and his Heirs And the Heir of the Disponer is in no other case than the Disponer himself whose Infeftment is to the use of the Buyer until his Right be confirmed and then ceases If the King should confirm the Charter à me granted by Castlemaines to Cesnock Quaeritur If in that case the Vassals will be in any hazard Answer It is thought not seing it cannot be said that they were at any time Vassals to Cesnock And though fictione Juris the Confirmation be drawn back as if Cesnock had been infeft immediatly after his Right yet it cannot be drawn back where there is medium impedimentum the Vassals having acquired a Right before and having never been Cesnock's Vassals but only to Castlemains before the Forefeiture If an Heretor of Land dispone his Land to be holden of the Superior and the Superior confirm the Disposition with all that shall follow upon it But before Seasin be taken upon the Precept the Disponer dies Quaeritur What way the Purchaser shall be Infeft Answer The Disponers Heir is to be Infeft and to grant a Precept relating to the former Disposition and Confirmation Or if he will not or think not fit to be Heir the Lands may be adjudged from him as charged to enter Heir Quaeritur In the case foresaid if the Superior after he has confirmed the Disposition die before Seasin thereupon Whether a singular Successor in the Right of Superiority may question the said Infeftment Ratio Dubitandi That there is medium impedimentum viz. The Superior is changed and the former Vassal being his Vassal the time of his Right thereafter another Person cannot be his Vassal without his consent Et è contra the former Superior having done all that he could do to perfect the said Right and nothing resting to compleat it but the deed of the Disponer or his Heir by giving Infeftment the former Superior was denuded as to his Interest So that his Successor cannot question the said Right being perfected by the Infeftment If at least the Successor of the Superiority may be urged to renew the Confirmation Ratio Dubitandi The singular Successor in the Superiority may be urged to grant Infeftment upon Resignation in the hands of his Predecessor Cogitandum But it appears there is a difference seing by Resignation the Property is in the Superiors hands whereas by the Confirmation it is not and the Vassal is not denuded before Infeftment upon the Charter confirmed whereas he is denuded by Resignation and by Comprising which in Law is equivalent to a Resignation accepted seing the Superior cannot refuse to give Infeftment upon Compriseings If the Disponer be denuded of the Superiority what course is to be taken against his singular Successor for renewing the Procuratory Answer Seing in the case in question the Buyer was infeft according to the Tenor of the said Disposition It is to be considered if the King may notwithstanding confirm the said base Right Confiscation IF a Person being at the Horn dwell within a Regality and have Goods or Debts within another Regality Will these also belong to the Lord of Regality where he dwelleth upon that pretence that sequuntur personam Confusione tollitur obligatio BY Contract of Marriage the Husband is obliged to employ 30000 merks to himself and his Wife in Conjunctfie and the Heirs of the Marriage and has obliged also his Heirs and Executors to employ at his decease 15000 merks to his Bairns besides the Heir Quaeritur If the Heretable Estate be short of 30000 merks May the Heir pursue the Executor ad Supplementum Ratio Dubitandi he is served Heir and eadem Persona with the Defunct confusione tollitur obligatio It is thought he may and that Maxim militateth when the Heir succeedeth in universum Jus Patrimonium But in this case the Heir having right only to the immoveable Estate there is no confusion of that Obligement which is prestable out of the Executory to which the Heir has no right as in the case of moveable Debts due by the Defunct to his Heir either of Line or TailÈie there is is no confusion for the reason foresaid Item Quaeritur If there be not so much in the Executory as may satisfy the Provision foresaid in favours of the Bairns if they may have recourse against the Heir for their Provisions Ratio Dubitandi The Heir by the Contract was to be provided presently and the Bairns at or after the Father's decease and by and attour the Sum provided to the Heir so that the Heir should have his Provision as Praecipuum and before the Bairns Answer It is thought That the Heir being provided under the name of Heir which is Nomen Repraesentationis as he is lyable to other Creditors so he is lyable to the Bairns being provided under the notion of Bairns who do not represent If the said Provisions had been in a second Contract of Marriage the Son of the first Marriage being Heir of Line would be lyable to the Son of the second Marriage though served Heir and there would be no confusion for the Reason foresaid Conjunct-Fiar QVaeritur If a Lady Conjunct-Fiar or Liferenter of a Barony may receive Vassals singular Successors upon Resignation or Confirmation or give Novo damus Conquest A Father being obliged to provide to the Heirs of the first Marriage the Conquest and having acquired a Room during the first
or where the Heir to the Disponer had Right himself the time of the disposition Quaeritur quo casu Jus Superveniens accrescit And if it should be understood of the Right only of moveables and such things as may be transmitted without infeftment And not of Lands and others which cannot habili modo be conveyed much less accresce without Infeftment Justice-General IF the Justice-General may be Judge to Ryots or any Crime or Delict whereof the pain is not defined by Law but left arbitrary K. Nearest of Kin. THE Interest of the nearest of Kin is that they may be confirmed Executors and if they die before confirmation they do not transmitt and yet if the Testament be confirmed by any person nascitur actio against the executor who is Lyable to the nearest of kin which they transmitt There being three persons who are nearest of kin to a Defunct and the edict is moved and served at the instance of the Procurator-fiscal and two confirmed only whether will the third have action against the other two as nearest of kin for a part Ratio Dubitandi That these who are executors of Law cannot have Right de facto unless they confirm that being modus adeundi in mobilibus and the nearest of kin by the act of Parliament has only an action in the case where he cannot adire there being executors nominate and confirmed who have Right to the office and a third part so that the nearest of kin may pursue for the rest When the nearest of kin have action against the Executor Nominate if some of them decease before confirmation whether will they transmitt the forsaid action Ratio Dubitandi it is not Officium but Jus legitimum which may be transmitted as the relicts part and bairns part without respect to the confirmation and on the other part it may seem that seing they did not intent action before their decease they do not transmitt and in such cases the intenting of action is instar aditionis and there is no representation in moveables There being two Daughters of which one being Married by her Contract of Marriage accepts her Tocher in satisfaction of what she could Pretend to by the decease of her Father and Mother Quaeritur the Father having survived the Mother whether will the other Sister have entirely her Mothers part as nearest of kin to her Ratio Dubitandi The other had renounced And on the other part the Mothers part did entirely belong to her self and to her nearest of kin and the said sister that renounced is alse near to her Mother as the other Vide Renunciation Litera R. KING IF the King take burden in a Discharge granted by a Minor that he shall ratify at perfect age Quaeritur whether the Kings successors will be lyable representing their predecessors Ratio dubitandi The King succeeds not as Heir but Jure Coronae as in the case of single incorporations V G Bishops who are said to be successors and are not Lyable to the debts of their predecessors or in the case of feuda ex pacto providentia Cogitandum Earl of Tweeddale and Duke and Dutchess of Monmouth If the King be in the case of other Minors So that a revocation is not sufficient unless a reduction be intented Debito tempore intra quadriennium utile King and Prince IF the King and Prince be to be considered as incorporate so that these who succeed are in the case of successors of Church-men and do not succeed by Inheritance but by succession L. Laudimium LAudimium debetur Usufructuario non Proprietario Thes Besoldi verbo Handlohm P. 359. versus finem Licet Dominus directus post alienationem ab Emphyteuto factam novum possessorem investiat nulla facta mentione Laudimij aut ab eo censum recipiat tamen suo juri non censetur renunciare sed Laudimij integram exactionem habet nisi expresse donaverit Ibid. p. 360. sect 2. Laudimium nondum exactum connumeratur inter fructus pendentes si Emphyteusis pertinet ad parochum illud non exactum ad haeredes haud transmittitur sed cedit ei qui in beneficio succedit ibidem Lawburrows for Burghs IF a Burgh be Lyable to find Lawburrows for their Burgesses The Lord Thesaurer-Deput In Lecto IF in Lecto a Person having children may marrie their Mother in order to their Legitimation in prejudice of his Heirs If after a criminal and capital sentence a person condemned be in Legitima potestate Seing he cannot be said to be in Lecto and the Sentence doth not affect immobilia If a man on death-bed be accessory to Treason whether will his Estate forefault in prejudice of his Heir It seemeth that though in Lecto Lands cannot be sold or annailÈied any way in prejudice of the Heir that being only the case of the old Law of deeds in Lecto Yet consequentially a man on death-bed may do many deeds in prejudice of the Heir and a Traitor on death-bed may be taken out and punished If a Band being heretable may be made moveable of purpose in Lecto Executors of Colonell Mathison George Hadden If an infeftment be given of Lands holden Ward upon the resignation of the Father in Lecto and a reversion apart to the Father to redeem upon a Rose-noble Quaeritur if the Ward and Marriage be cut off Answer if the Lands hold of a Subject Sibi imputet that he did not enquire and know the condition of the Disponer But if they hold of the King there may be some question Seing the Kings Grants may be questioned upon Obreption or Subreption and the negligence of his Officers should not prejudge him and it appears the course forsaid was taken of purpose to defraud the King of his casualities being in spe proxima and the disponer having Provided for himself that he should be master of his Estate by the Reversion forsaid It is thought there is a Decision in the said case in favours of the King which should be tryed A person on death-bed having made a Disposition in favours of a Creditor but to the Prejudice of his other Creditors The Defuncts whole estate being disponed in favours of the Creditor forsaid Quaeritur If the Defunct could on death-bed prejudge his other creditors and preferr one to all his other Creditors Seeing persons being on death-bed are not in Liege Ponstie as to any deeds But the making of Testaments and not as to deeds inter vivos and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained and any deed done on death-bed is upon the matter but a Legacy or codicill and a dying person should not be allowed to do any fraudulent deed and it is a fraud where there are many creditors to give one the whole estate and a person in Lecto cannot Prejudge his Heir and a fortiori ought not to prejudge his creditors who would be preferable to Heirs and as in the
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
Scotland it may be affected If a Prince may command a Subject living Abroad under his Enemy to retire and come home And if he disobey may he be proceeded against and be divested of any Fortune and Liberty competent to him as a Native Quoties Rex Princeps vel alius in alterius Regis vel Principis Territorio bona habet possidet ratione quorum Juramentum fidelitatis praestare solitus est per hoc non efficitur ratione suae personae seu personali obligatione subditus aut subjectus nec quoad personam sortitur forum nisi secundum quid ita ut pro tali possessione bonorum conveniri possit coram Judice loci in cujus Territorio bona sunt Thes Bes in litera H. 70. Huldigung p. 402. Substitutes A Bond for a Sum of Money being granted to Sempronius and FailÈieing of him by decease to Titius and Titius his Heirs and Assigneys Quaeritur who is Fiar Answer The first person Titius being only substitute FailÈieing of him by decease and Successor in spe Quaeritur If Sempronius may dispose of the said Sum by Testament as he may inter vivos Ratio Dubitandi That Titius is substitute by a deed inter vivos Answer It is thought he may Seing such Deeds are upon the matter Donationes mortis causa in which voluntas est ambulatoria Quaeritur If the said Substitute will be lyable as Heir of TailÈie It is thought he should be lyable Seing if there were an Infeftment in the terms foresaid the Substitute could not succeed but as Heir of Provision If a Bond bearing the Substitution foresaid be registrate Quaeritur If the Substitute being named as said is may charge thereupon Answer It is thought not because the Bond being registrate is a Decreet as to the first Person but the Substitute having only right instar haeredis by Succession he cannot charge no more than an Heir of Provision Substitutio SVbstitutio est Designatio secundi vel ulterioris haeredis Substitutio vulgaris est ea quae fit in casu vulgari haereditatis non aditae nec acquisitae Perez Institut lib. 2. tit 15. Substitutio Pupillaris est qua Parentes Liberis suis in potestate sua impuberibus substituunt in casu mortis ante Pupillarem aetatem acquisitae haereditatis Constitutione Divi Marci Veri substituens in alterutrum casum duntaxat vel Vulgaris vel Pupillaris substitutionis in utrumque substituisse intelligitur alterum sciêª expresse alterum tacite Perez Ibidem Quaeritur De substitutionibus in Taliis nostris istis verbis viz. Cum Terrae disponuntur Titio haeredibus suis de corpore suo prognatis quibus deficientibus haeredibus masculis c. utrum sunt pupillares an vulgares Responsio Eas utramque Substitutionem continere Deficientibus enim Haeredibus institutis in primo gradu quolibet casu sive non adierint sive haereditatem adierint defecerint ad substitutos haereditas pertinet Substitution in Bonds A Bond being granted to the Creditor and failÈiening of him by decease to another person Quaeritur If the Person substitute will be lyable to the Creditors Debt at the least pro tanto Seing the Sum was in bonis and his Debt ought to be satisfied out of his Estate If such Bonds may be altered by the Creditor not by uplifting which he may do being Fiar but also by changing the Bonds and taking the same to himself and any other person or to his Heir Seing the Bonds seem to be a perfect Donation in favours of the Substitute and on the other part they may be thought mortis causa If the Creditor may dispose of such Sums by Testament A Bond being granted by diverse Persons to my Lord Dundonald and failÈiening of him by Decease to his Son the Lord Cochran his Heirs and Executors and after the decease of Sir John Nicolson one of the Debitors he having taken a Bond of Corroboration from his Brother Sir William to himself and failÈiening of him by decease to his Grand-child then Lord Cochran his Father being deceased Quaeritur Seing the first Bond stands as to the rest of the Debitors Whether the Lord Cochran his Fathers Executors will have Right to the same And what course shall be taken to get the Right of the former Bond settled in Cochran's Person Quaeritur If the former Bond being null and in the Bond of Corroboration there be an Obligement to Infeft if the nature of the Sum as to the former Quality of Moveable be altered A Bond being granted to Robert Selkirk Merchant in Edinburgh and Katherine Inglis his Spouse the longest liver of them two in Conjunctfie and failÈiening of them both by decease to Robert Selkirk their lawful Son and to the Bairns lawfully to be procreat of his Body which failÈiening to the other Heirs lawfully procreate or to be procreate betwixt the said Robert and his said Spouse Which all failÈiening to the said Katherine Inglis her own nearest and lawful Heirs Executors or Assigneys with this Provision That it shall be leisum and lawful to the said Robert Selkirk Elder at any time dureing his lifetime vel in articulo mortis by himself alone to uplift discharge or otherways assign and dispone the Sums in the said Bond in haill or in part to any Person or Persons he shall think expedient and to make and grant all Writes Rights and Securities requisite thereanent in due and competent Form without the Consents and Subscriptions of the said Katherine Inglis his Spouse and Robert Selkirk his Son or his foresaids had or obtained thereto in any sort The abovementioned Robert Selkirk the Husband and Robert Selkirk his Son being both deceased without Heirs either of the Body of the said Robert Selkirk Younger or of the Marriage betwixt the said Robert Elder and the said Katherine Inglis so that the said Katharine has Right to the said Bond Quaeritur Whether the same will pertain to her in her own Right as Fiar or as substitute in the last place and representing the Fiar And who is Fiar by the said Bond Whether the said Robert Elder his Son or the said Katharine who pretends to be Fiar because the Right of Succession terminats upon her and her Heirs It is Answered That albeit when a Bond is conceived simply to two Persons in Conjunctifie and the Heirs of one of them the Person to whose Heirs the Sum is provided is understood to be Fiar yet when there are diverse degrees of substitution of the Heirs of diverse Persons the Person whose Heirs are first substitute is Fiar and both his own Heirs substitute in the first place and the other Heirs of any other Person substitute after them will be Heirs of Provision to him As when a Bond is taken to a Husband and his Wife the longest liver of them in Conjunctfie and to the Husbands Heirs whilk failÈiening to the Wife her self and her Heirs tho the Right of Succession as to the
said Bond does terminate upon the Wife and her Heirs yet the Husband will be Fiar both as dignior and because the Right of the Sum will pertain to his Heirs in the first place and to the Wife and her Heirs only upon their failÈieur and as Heirs of Provision to them And Therefore In the present case the Money being lent by the Husband and being provided after his decease to his Son Robert and the Heirs of his Body whilk failÈiening the Heirs of the Marriage betwixt the Husband and the Wife and to the Wifes Heirs only in the last place It is thought That her Husband is Fiar and that the Wife and her Heirs will only have Right as Heirs of Provision unto him And if Robert should have had Children or if there had been other Children to the said Robert Elder by the said Katharine it were absurd that they should have had the Right of the said Sum which was lent by the Husband not as Heirs to him being their Grand-father or Father but as Heirs to the said Katharine being their Mother or Grand-mother or that the said Katherine surviving her Husband should have power as Fiar of disposeing the said Sum or to have given it to a second Husband in prejudice of the said Robert her Son or the Heirs of his Body and the Heirs if there had been any thereafter procreate of her Husband and her tho descended of both If it be found by the Lords that either the said Robert Selkirk Elder or his Son Robert was Fiar the said Katharine must be served Heir of Provision to the Fiar Substitution in Legacies A Legacy being left to a Person and failÈiening of him by decease to another Quaeritur What the Import of that Substitution is Answered It is thought That it is Substitutio Vulgaris and that the Effect of it is That if the Legatar die before the Testator so that the Right do not take effect in his Person it should belong to the Substitute But that is not fideicommissaria So that the Legatar dieing after the Testator it would belong to his Executors and not to the Substitutes Successio in Maternis A Grand Father upon the Mothers side having the time of his decease two Daughters and Children of a third Daughter Quaeritur If the two Daughters will only succeed and exclude the Children of the third Ratio Dubitandi That Representation is in order to the standing of Families and in the case of Primo-geniture whereas in Successione materna the Interest of Families is not considered seing the Grand Children by their Mother has not somuch as caput in Familia And for the same reason mobilia because they are not the Foundation of Families admitt no Representation Answer It is thought by our custom The Children of the deceist Daughter will succeed with their Materterae Et non potest reddi ratio omnium quae a majoribus constituta sunt If the Children of the deceast Daughter do succeed Quaeritur If the deceased Daughter has left Sons and Daughters whether the eldest Son of the said Children will succeed to their Grand Father Or if all the Children will be Heirs Portioners as to their Mothers part Seeing for the same reason that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae a fortiori they who are not in Familia at all ought to be Heirs portioners Answer It is thought that the eldest Son of the deceast Daughter will succeed as Heir portioner with his Aunts and the Law doth favour not only Families as to preservation after they are constitute but likewise as to their Constitution And the eldest Son albeit he be not in Familia materna may constitute and be a head of a Family of his oun Successio in Stirpes SI duo Conjuges ita testentur post utriusque obitum utriusque haeredes ex aequo successuros haeredes fore tunc non in capita sed stirpes succedunt in duas aequales portiones haereditas dividenda est quia quilibet suos haeredes aeque dilexisse creditur illis ex aequo prospicere Thes Bes verbo Gleich 62. P. 323. 324. sect ult De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus QVaeritur De Feudo amisso reverso quo Jure censendum sit utrum Haereditatis an Conquestus de omnibus commissi speciebus competit sive ob Alienationem sive Disclamationem sive Purpresturam vel Baratriam aut qualemcunque Feloniam aliudve delictum feudum apertum dicatur Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit de ea praxi nostra maxime solenni textui accommodatiori quaestionem agitabimus Decisionem ad reliqua commissa indistincte porrigendam praefati Quaeritur igitur cum Superior feudum per Recognitionem sibi asseruit utrum feudum Recognitum post obitum ipsius ut conquestus ascendat An vero ut haereditas cum feudo dominanti descendat posito feudum dominans haereditarium esse Quaestio haec in se difficilis gravissimas consequentias secum trahens haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat Quod ut patefiat sciendum duas apud nos invaluisse Recognitionis species ex causarum diversitate diversas unam ob defectum Vasalli alteram ob delictum Ex posteriori causa feudum ob delictum admissum Vasalli dicitur proprie committi Ex priori Vasalli prosapia quam in prima feudi concessione dominus ad feudi successionem asciverat extincta feudum dicitur finiri cum stemmate in quo resederat exspirare si enim ab initio contessum est alicui haeredibus masculis ex ipsius corpore progenitis vel descendentibus masculis Vasallo mortuo nec ullo ex descendentibus masculis superstite dominus feudum ab haeredibus talliae vel per foeminas descendentibus revocat hanc feudi revocatïonem Balfurius Recognitionem vocat ejus praxin prodidit in Tract de Recognitionibus datam 18. Decemb. 1506. Regio Advocato agente contra Joannem Margaritam Auchtrans haeredes alterum talliae alteram lineae Et hoc Genus Recognitionis etiam in feudis Francis locum habet feudo hac ex causa revocato etsi dubitari potest utrum in persona domini ád quem revertitur Haereditatis an Conquestus naturam induat certum est eodem jure quo feudum dominans censeri eandem naturam qualitatem sortiri respectu successionis omni alio respectu qui ex distractione divisione propriorum seu haereditatis conquestuum secundum nostram consuetudinem posset emergere Quin etiam hoc casu non solum Dominium directum dominium utile attrahit sed possessio civilis possessionem naturalem advocat adeo ut Dominus directus possessionem naturalem nactus non dicatur novam adeptus sed veterem continuare possessionem
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Found That the Alledgance was not relevant unless he should offer to prove it really payed and profitably employed for the use of the Minor In this Process the Lords would not sustain the Reason per se unless Lesion were joyned and libelled viz. That the Lands were disponed sine Decreto Judicis D. 62. Shaw contra 13. Decemb. 1666. SHaw being confirmed Executor to his Brother a Factor at London and diverse Decreets being recovered against him at the instance of the Defuncts Creditors He desired a Suspension upon that Reason That he had done Diligence to recover the Defuncts Debts and Goods and that he could not satisfie the Decreets obtained against him until he should recover the Defuncts Estate and that he was content it should be divided amongst the Defuncts Creditors according to their Diligences and therefore craved a Suspension without Caution being content to make Faith that he could not get a Cautioner The Lords past a Suspension as to personal Execution only D. 63. Hamilton contra Brown 15. Decemb. 1666. HAmilton of Grange being pursued as representing his Father upon the Title of Behaving and Gerens pro Haerede for payment of a Debt of his Fathers It was alledged that this Condescendence viz. That he had behaved as Heir in sua far as he had granted Dispositions of Land belonging to his Father And 2ly That he had consented as appearand Heir to some Right of Lands apprysed from his Father Is not relevant unless it were said and alledged that he had done these Deeds before the expyring of the Comprysing seing he could have no Right after the expyring of the same and neither could be Heir nor Gerens pro Haerede as to such Lands And as to his consent it was not sufficient unless he had disponed The Lords inclined to be of this Judgement That his consent being as appearand Heir should import Behaviour and that though the Comprysings were expyred he might have an interest to question the same as not formal or Null or satisfied by Intromission or by some other Ground and that by his consent he was denuded of that Interest and therefore such Dispositions should import Behaving Yet in respect the Writes which were to be used to prove the Passive Title were not produced and much may depend upon the wording and conception of the same The Lords thought fit to ordain before Answer the Writes to be produced and assigned a Term to that effect But declared that their Act should be Litiscontestation quoad hoc That the Pursuer after the Term is run upon the said Act should not get others as if there were not Litiscontestation Lockhart for Grange and Birnie for the Pursuer D. 64. Hartshaw contra Hartwoodburn eod die SCot of Hartshaw pursued a Declarator of Property within the Bounds libelled and that he had been in Possession by pasturing and doing other Deeds of Property and debaring the Defender Hartwoodburn and his Predecessor In this Process there was an Act of Litiscontestation whereof a Reduction was intented upon that Ground that the Defender was absent and was Minor and indefensus wanting Tutors and Curators for the time his Tutor being dead and that he had a defence Minor non tenetur placitare The Lords Found If the Summonds had concluded the possessorie of Molestation And if that had been lybelled that the Pursuer the time of the intenting the Pursuit was in Possession would have repelled the Defence that non Tenetur against the molestation But because a Declarator of Right was only lybelled they reponed the Minor And Found that non tenetur placitare Longformacus for Hartwoodburn and Sir George McKenÈe for Hartshaw D. 65. L. Colvil contra Feuars of Culross eod die THe Lotd Colvil being Baillie of the Regality of Culross and lyable to uplift the Taxation of that Abbacy And having charged certain of the Vassals to pay their Taxation They suspended upon that Reason That a fifth Part more than the Taxation was stented upon them on pretence and in consideration of Charges The Lords Found That they could not be stented to more than the Taxation tho the Sheriff and Baillies of Regality be lyable to uplift the Taxation Yet it seems hard that they should be at the Charges of raising of Letters and Registration of Hornings and such like And albeit the Vassals who are content to pay their Proportion should not be lyable to more yet it may appear that it is reason that when the Sheriffs or Baillies give in what they have uplifted their Charges should be allowed D. 66. Hay contra Littlejohn 16. Deeemb 1666. LIttlejohn having comprised the Liferent Right of a Tenement in Leith the said Tenement became ruinous and by the fall of a part of it did crush a part of the next house adjoining to it belonging to _____ Hay of Knockondie In a Pursuit Knockondie against Littlejohn for Damnage and Interest The Lords sustained Process The Pursuer proving that the House was manifestly ruinous without necessity to lybel or reply that the Pursuer had required the Defender to repair his House It being sufficient that the case of the House was such as did really require and call for Reparation in order to his own Interest and for preventing his Neighbours So that it being his Fault that he did not repair the same he was lyable to refound the Pursuers Damnage And albeit by the Act of Parliament Liferenters may be urged to find Caution to keep their Liferent Lands Sarta tecta and in the condition they found them at their Entry And by the Civil Law Neighbours may be urged to find Caution Damni infecti the said Remedies are not privative in case any Prejudice be done before they be taken D. 67. Allan contra Campbel eod die EDinample Campbel being pursued as representing his Father upon the Title of behaving as Heir It was alledged that he intrometted with the Duties of the Lands condescended upon by a Right to two Comprysings against his Father It was replyed The Comprysings were not expired the time of his Fathers Decease so that in effect he was Heretor The Lords Found That Gestio being magis animi quam facti The Defenders Intromission by vertue of a Title did not infer Behaving D. 68. MenÈies contra Burnet Decem. 18. 1666. A Relict being provided to the Liferent of the conquest dureing the Marriage and pursueing for the same It was alledged that the Money in question which the pursuer pretended to be conquest dureing the Marriage did belong to the Defunct before the Marriage and that the Bond was renewed after it The Question was what way the said Alledgance tending to take from the Pursuer the benefite introduced in her favours by Write and by her Contract of Marriage could be proven Yet the Lords enclined to find it probable by the Debitor and the Witnesses in the Bond But before Answer They Ordained the Defender to use such Probation as he thought fit for proving the Alledgance Reserving
to themselves to determine what it should import D. 69. contra 18. Decem. 1666. IN a Process against an Heir of Provision It was Alledged that the Heir of Line ought to be first discust It was Replyed that the Heir of Line was conveened and Renounced And it being duplyed That the Estate belonging to the Heir of Line and whereto he should have Right if he were served Heir ought to be discussed The Lords Found No Process against the Heir of Provision until the Heir of Line was discussed and that the Renounciation of the Heir of Line was not sufficient but that the Creditor behooved to proceed to Adjudication contra haereditatem Jacentem belonging to the Heir of Line D. 70. Deacon of the Weavers contra the Magistrates of Edinburgh 1. June 1667. THE Deacon of the Weavers being imprisoned by the Magistrates of Edinburgh because he had disobeyed their Order anent the putting in their Hand a Box for the Poor of the Journey-men until some Questions betwixt the Masters of the Trade and the Journey-men of the same should be decided did crave by a Bill to be enlarged upon that reason that the Craft had intented a Reduction of the Contract betwixt their Predecessors and their Journey-Men concerning the keeping and having a Box for the Poor of the Journey-men And that until the Decision of the Process the Box ought to be keeped by their Deacon The Lords Ordained the Complainer to be enlarged by Consigning the Box in the Clerks Hands Upon occasion of the said Process it was agitated amongst the Lords Whether there could be a Contract and Transaction betwixt the Craft and Journey-men who are not an Incorporation and cannot oblige their Successors Seing there can be no Successors but of a Person or Incorporation But the Lords without giving Interloquitor upon that point Ordained the Reduction to be heard summarly Gibson Clerk MckenÈie alter Lockheart D. 71. Young contra Young 4. June 1667. IN the case Young contra Young It was agitated Whether a Husband be Lyable for his Wifes Debt before the Marriage being proven no otherways but by her Oath dureing the Marriage If the Husband declare he does not distrust her and believeth she hath declared Truth The Lords did not decide the point but some were of the opinion That if the Husband Declare upon Oath that he believeth she did Declare Truth he will be Lyable in respect that by the Law the Husband is Lyable for the Wifes Debt being Legally proven And the Question is only whether the Wife may declare in prejudice of her Husband which she cannot do because otherwayes it may be in the power of an untoward Wife to undoe her Husband which inconveniency ceaseth when the Husband declareth he hath no reason to distrust the Wife and that he believeth she hath told Truth The great Question will be Whether the Husband may be urged to give such an Oath of Credulity Seing whatever a Husband thought yet having an Imperious Woman he should be forced to comply with her and to declare that he believeth her otherwayes he would have a miserable Life Scot Clerk D. 72. Thomson contra Stevenson Eod. die IN the case Thomson contra Stevenson The Lords Found that the Extract out of the Kirk-Session Books is not a sufficient Probation of Age to infer Reduction Ex capite minoritatis But the case being difficilis probationis after a considerable time They Found that aliqualis probatio ought to be received with the Adminicle foresaid Norvel alt Wallace Hamilton Clerk D. 73. Zinzian contra Kinloch Eod. die ZInzian having poinded pursued a SpuilÈie against Kinloch having meddled with some of the poinded Goods The time of the adviseing the Cause the Defender offered to improve the Poinding in data The Lords Repelled the Defence in hoc statu Reserving Action In respect the Poinding was produced ab initio notwithstanding it was alledged that the Defence was noviter veniens ad notitiam which the Lords did not respect because the Poinding being produced ab initio as said is The Defender should have tryed and might have had the same Information which he has now of the same In the same Process though the prices of the Goods SpuilÈied were not proven because it is to be presumed that the prices contained in Poindings are not too high And the Lords having considered the poinding Found the prices low Haystoun Clerk D. 74. Mitchel contra Mitchel 12. June 1667. THE Lords upon a Bill ordained Witnesses to be received before Litiscontestation and their Depositions to ly in Retentis Because they were in Town for the present and were to go to Zetland and senes valetudinarii and peregre profecturi And upon such like considerations others may be received Witnesses in hoc statu Scot Clerk D. 75. Lumisden contra Summers Eod. die IN a Declarator of Escheat it was alledged that the Goods Lybelled were Disponed to the Defender It was Answered that the Disposition was stante Rebellione It was Replyed That in Fortification of the Disposition it was offered to be proven that the Disposition was made for the price of Corn and Straw and other Goods disponed to the Rebel and whereby His Majesty and his Donator had benefite in respect the same was employed for the Entertainment of the Beasts and Sowing the Ground whereof the Encrease fell under Escheat The Lords Repelled the Defence And Found that the Rebel being Lyable only personally for the price of the Goods alledged Disponed and the property of the Goods in Question being his the same belonged to the King And the King and his Donator was not obliged to debate upon what account and occasion the Rebel was Debitor to the Defender Or what use he made of the Goods Disponed to him by the Excipient And is in no worse case than a Creditor poinding or Arresting or any other person acquiring Right to the property of Goods who would be preferred notwithstanding such pretences there being no such Hypotheck that can be pretended by the Law of Scotland Diverse instances were adduced by me to this purpose not only in behalf of the King but of other Superiors and Heretors as V. G. If a Superior should pursue Declarator of a Liferent and it should be alledged that after Rebellion the Rebel had Disponed a part of his Lands And that it should be offered to be proven that the Money for which the Disposition was given was lent for acquiring the Right of the Lands So that thereby the Superior had benefite thereby Or if the Master were pursueing by vertue of the legal and tacite Hypotheck competent to him and it should be alledged that the Tennant was Debitor to another for the price of Corns furnished for Sowing the Ground In which cases the Superior and Master could not be frustrate upon any such pretences Birnie alter Thoirs Frazer Hamilton Clerk D. 76. Dalrymple contra Eod. die A Reduction of a Testament being pursued Ex eo capite that the
Defunct was fatuus incompos mentis And the Relevancy being questioned because no Act or Circumstance or qualification was Libelled inferring the Defunct to be in that condition The Lords Ordained the Pursuer to condescend Wallace alt Hog D. 77. Harroway contra Haitly 14. June 1667. JAnet Harroway pursued the Heirs of Alexander Haitly her Husband to hear and see the Tenor of her Contract of Marriage with her said Husband proven being lost as was pretended the time of the Troubles It was alledged that no Adminicle in Write was Lybelled or produced And whereas it was Lybelled that John Nicol was employed as Writer for drawing of the Contract the double of it was insert and extant in his Servants Stile-Book The said Stile-Book being neither a Write under the Defuncts hand nor a Minute nor a Record Extant in any Register could not be sustained as any Adminicle The Lords Albeit it was offered to be proven by the persons alledged to be Writer and Witnesses to the Contract that it was subscribed and of the Tenor Lybelled and other probabilities were urged Yet they did not sustain the Summonds without an Adminicle upon that consideration in special that our Law ob Lubricam fidem of ordinary Witnesses against whom there is possible no legal exception deferring so little to their Testimony That Transactions Agreements or Promises above the value of 100 pounds cannot be proven by Witnesses If such pursuites should be sustained without Adminicles of Writ Contracts of greatest importance might be made up and proven by Witnesses It was remembred by some of the Lords that in the Process Corsar contra Durie The Lords were so tender that upon a contentious debate a Seasin was found not to be an Adminicle D. 78. Antrobus contra Anderson Eod. die GEorge Antrobus English-man pursues William Anderson Provost of Glasgow for 234 lib. 13. shillings Sterling due by John Herbertson sometimes Baillie of Glasgow upon that ground that being charged to take the Debitor upon Letters of Caption he had refused to concur with the Messenger It was alledged that the Defender was not in sight of the Rebel and though it be pretended that it was shown to the Defender that the Rebel was in the same House in another Room for the time yet the Defender being chief Magistrate and Provost of the Town he was not obliged to go himself to seek the Rebel and it was sufficient he was willing to send his Officers and did send them to that effect Especially it being considered that the Provost was charged about Nine of the Clock under Night and the Army having come that same Night to Glasgow he was the very time that the Messenger charged with the Quarter-Master and other Officers about the business of quartering the Forces All which amounteth to a Relevant Defence to free the Defender of an odious pursuit the pursuer having no prejudice in respect the Rebel was and is notourly Bankrupt and was imprisoned a few dayes after and continued a long time Prisoner in Glasgow The Lords Found the Alledgance Relevant The Lords are in use to sustain such Actions in subsidium against Magistrates for payment of the Debt when they suffer the Debitor to escape out of Prison But when a Magistrate is charged with Letters of Caption bearing no Certification but Horning it appears hard to me that the Law having defined and prescribed the pain and certification that the Lords should sustain any other penal Action without the warrant of an Act of Parliament And that the Magistrates for a Culpa or neglect should be Lyable to the whole Debt which may be a great Sum. If the Action be considered not as a penal Action but for Damnage and Interest it should be only sustained in so far as the Creditor is prejudged so that the Debt being either recoverable and the Debitor in alse good case as before or being Bankrupt the time of the Charge the Magistrates may be denounced upon the Caption or censured for their Contempt but ought not to be Lyable for the Debt in solidum Scot Clerk D. 79. Davidson contra the Town of Inverness Eod. die THere being a Decreet of the Dean of Gild of Innerness against an Unfreeman Unlawing him in Three Hundred Pounds for Trading and a Suspension and Reduction being raised of the same upon that reason viz. That the Suspender dwelt without the Towns Jurisdiction And that by the Acts of Parliament Unfree-Traders may be charged to desist and to find Caution to that effect But the Town or Dean of Gild cannot proceed to process or unlaw them there being no such Act of Parliament to warrand it but only to Charge as said is and to confiscate the Goods D. 80. Forbes contra Blair Eod. die DOctor Forbes and his Spouse having recovered a Decreet against David Edgar The said David did grant a Disposition in favours of his Mother whereof the Doctor and his Spouse did intent Improbation and Reduction and after long dependence Certification was granted and Extracted But the Defender having given in a Bill craved to be Reponed pretending that the Certification was granted in Winter when the Defender being an Aged Woman and attending one of her Children being Distracted could not come in the time of a Storm and within five or six dayes after the Certification was granted she came and produced the Disposition The Lords before Answer whether they would repone against the Certification Ordained them to dispute upon the Reasons of Reduction viz. That the Disposition was inter conjunctas personas without an Onerous Cause and that the Condescendence was not relevant viz. That the Disponer had granted Bond for Aliment and Entertainment of him and the other Children to his Mother and for her Terce In respect the said Pretences were only patched up to colour the said fraudulent Disposition And that the said Disponer pendente lite and after Sentence could not in prejudice of the Pursuer give a Bond to be the ground of the said Disposition But if there were any ground of the said pretended Debts the Defender should have recovered Decreet for the same and though the Debt were without question the common Debitor contrare to the Act of Parliament could not make a voluntar Disposition in prejudice of the Pursuers Diligence to gratify and prefer another Creditor It was Answered That by the Act of Parliament the Reason viz. That the Right was granted without an Onerous Cause is only probable Scripto vel Juramento and that the Disponer not being inhibited the Defender might lawfully sibi vigilare and take a Right for a just Debt And by the Act of Parliament the Diligence that disableth a Debitor to give and a Creditor to take a voluntar Right is not a Dependence or a Decreet but Inhibitions and Hornings which are so publick that the Leidges may and ought to take notice of them The Lords were tender to repone against the Certification and yet they thought not good to take away the
leaving alse much as would be sufficient for the use foresaid It was Alledged that the Servitude did affect the haill Muir and that their Right flowing from himself could not be restrained sibi imputet who did grant it in the Terms of the said Latitude The Lords considering that it was intended that the said Servitude should only be for the end foresaid and it would be a prejudice both to the publick interest which is concerned that the Country should be improven and waste unprofitable Grounds Laboured and to the pursuer also without the least advantage to the Defenders They therefore Ordained alse much Ground to be set apart as might more nor sufficiently serve for the use foresaid and allowed the pursuer to labour and improve the rest without prejudice to the Defenders to make use even of the rest dureing the time it continueth in the present condition and not laboured And it case it should happen upon any occasion that what should be set apart for the Feuers use foresaid should prove short and not sufficient for that use they reserved Liberty to them to have recourse to the residue and granted visitation to the effect foresaid In praesentia Lockheart and Cheap alter MckenÈie D. 87. Hay of Stravan contra Oliphant 22. June 1667. IT was Found That a Miln-dam could not be drawn from one side of a Burn to another without a Servitude or consent of the Heretor having Lands on the other side and that the Heretor is not obliged to debate whether he had prejudice or not The Lands on the other side being hisand the Burn medio-tenus 2. It was also Found that he might lawfully demolish the Dam unless it were alledged that the Miln had gone the space of Fourty eight Hours So that it might have come to his knowledge that it was a going Miln Haystoun Clerk D. 88. L. Blantyre contra Walkinshaw 2. July 1667. IN a Reduction the Lord Blantyre contra Walkingshaw Ex capite minoritatis It was Found that the granting of a Bond though with consent of Curators being persons above all exceptions was Lesion and that it was not sufficient to alledge that the Money was actually delivered to the Curators or to the Minor in their presence unless it were also alledged that it were converted to his use This seemeth hard for the borrowing of Money by the Minor whose Affairs may require the same was not Lesion but the misemploying of it which is the fault of the Curators D. 89. contra Eod. die AN Assignation being made to Mails and Duties of a Tenement of Land for the Year in which it was granted and in time coming without Limitation The Lords Found That the Heir of the Cedent ought to have a formal and valid Disposition of the Land wherupon the Assigney may be Infeft Seing otherwayes he could not be secure as to a perpetual Right to Maills and Duties against a Singular Successor Et concesso Jure conceduntur omnia sine quibus explicari non potest D. 90. Mebrae contra Melaine 8. July 1667. IN the Process Mcbrae contra Melaine being for removing a Tutor suspect upon many Grounds and in special that the Tutors Father had been Tutor to the Pupils Father and had not compted and that the Tutor and his near Relations had Questions and Actions of great importance with and against the Pupil The Lords inclined That another Friend should be joined to the Tutor But no Answer was given by the Lords to the Dispute only the pursuers Procurators got a time to condescend upon a person fit to be joined D. 91. Crie contra E. Finlator 9. July 1667. A Creditor having obtained a Decreet in subsidium for payment of his Debts against the Magistrates of Dundee and having Assigned the Bond wherupon the Debt was due to the Magistrates they pursued the Cautioners in the Bond who alledged that the Debt and Bond being satisfied by the principal or Town of Dundee who was Lyable loco Rei ex delicto the Cautioners were liberate The Lords did demurr and delay to give Answer Vide infra 24. January 1668. D. 92. Grange Hamilton contra Smith Eod. die THe Lords Found That as the payment of Annualrents so the payment of Feu-duties may be proven prout de Jure Hay Clerk D. 93. Watson contra Law 15. July 1667. IN the Process Watson contra Law It was Found That Kirklands being Disponed with absolute Warrandice The Disponers are obliged to warrand from the Designation of a Gleib Though it was alledged that ex natura rei and not ex defectu Juris The said Gleib was evicted Thereafter it was Found in the same Cause That the Designation being as to Cows and Horse grass and upon a Law supervenient after the Disposition viz. An Act in the late Parliament The Disponer ought not to warrand from a Supervient Law D. 94. contra Eod. die EXhibition being pursued by an Appearand Heir to the end he may advise not only as to the Writes in favours of the Defunct but such as were granted by him The Lords superceeded to give Answer as to the last Member until they should consider the Act of Sederunt It being alledged by some of the Lords That by an Act of Sederunt it was ordained that no person should be forced to exhibite Writes granted by Defuncts in favours of himself or his Authors Except Writes granted by Parents Or Husbands in favours of Wives and Children D. 95. Hamilton contra Symenton 16. July 1667. IT was Found That the Mother being Liferenter of all that could belong to the Daughter as Fiar and Heir to her Father was obliged to entertain her and de facto having entertained her could crave nothing for her aliment though the time she was entertained she was only appearand Heir and thereafter was about to renounce to be Heir Hamilton Clerk D. 96. Elleis contra Keith eod die THE Lords upon debate and deliberation Found That a Person addebted in payment of a Sum upon a Wadset may pay his Debt and take a Renunciation tho the Creditor granter be inhibited and that Inhibitions do not affect Renunciations The Reasons that moved these that were for the Decision are 1. That Inhibitions do hinder the Liedges to purchass from Persons inhibited but not to borrow Money from them and as they may lawfully pay the Sums they borrow so they may take Discharges and Renunciations 2. When a Person does grant a Renunciation of a Wadset he doth not grant a Voluntar Right but only a Discharge upon the matter which in Law he might be forced to give upon an Order of Redemption 3. A Person inhibite might take Payment and grant Discharge of an heretable Bond even before Sums due upon such Bonds became arrestable 4. If Inhibitions should affect Renunciations of Wadsets then they could not be granted without consent of the Creditor who had inhibited even after an order of Redemption 5. The Inhibition where it mentioneth and prohibiteth
sequitur invalidam esse superius enim dictum est in contractibus obligationibus de successione Talliata de rebus immobilibus praediis nos quotidie disponere eas autem donationes esse mortis causa patet ex praedicta Definitione mortis causa donationis quod omnes de successione contractus mortis contemplatione plerumque non sine mortis commemoratione fiant effectum post mortem sortiantur in iis ambulatoria sit voluntas nisi accedat pactum de non revocando Ad Tertium Respondetur falsam esse Propositionem nec enim cessante causâ impulsiva cessat effectus nec qui periculo imminente mortalitatis admonitus Testamentum condidit si periculum effugerit aut eluctatus fuerit eo minus in voluntate eadem perseverasse censebitur testatus discedit nisi revocasse constiterit Ad Quartum Respondetur Dispositionem reditu eveniente haud nullam aut irritam esse sed revocabilem id ex eo demonstrari Quod sibi soli tantummodo reservarit si domum rediret potestatem revocandi si enim inanis caduca fieret Donatio in casu reditus quorsum ista potestas sibi soli reservata revocandi donationem quoad omnes ipso conditionis eventu extinctam revocatam Ad Quintum Sextum Respondetur Negatur instrumentum post Donatoris reditum penes eum esse penitus supervacuum disceptare an penes eum fuerit cum nunc penes actorem sit sibi a donatore traditum nec necesse est docere quomodo quando ad se pervenerit Senatus Interlocutus est Donationem istam Testamenti naturam haud sapere sed validam efficacem esse Sed si constiterit probatum fuerit penes donantem instrumentum post ejus reditum fuisse tuno revocatum irritum esse An autem eo quod penes actorem nunc sit a revocatione discessum sit reviviscat Donatio interloqui sustinuit ulterius inquirendum censuit quando quomodo ad actorem pervenerit D. 124. Whitehead contra Straiton 14. Novemb. 1667. RObert Whitehead of Park pursued John Straiton Tacksman of the Park of Holy-rood-house for the price of a Horse put in the said Park to be pastured for 4. shil per night which after search cannot be found It was Alledged That by a Placad affixed upon the Gate of the Park It was intimated that the Keeper of the Park would not be answerable for any Horses put therein although they should be stolen or break their Neck or any other Mischief or Hazard should overtake them It was Replyed That by the Law Nautae Caupones c. the Keeper ex conducto is lyable unless it were alledged That it had been expresly agreed that he should not be lyable or at the least that it was known to the Pursuer that such a Placad was affixed when he put in his Horse The Lords Before answer ordained the Reporter to enquire and hear the parties upon the terms of the Agreement when the horse was put in whether it was told or known to the pursuer that the keeper would not be answerable Castlehill Reporter D. 105. Gardiner contra Colvil 16. Novemb. 1667. IN an action Gardiner contra Colvil the pursuer being ejected during her Husbands absence out of the countrey and when it was supposed he was dead The Lords sustained the pursuite Though the time of the adviseing the probation It was offered to be proven that he was living and did declare that albeit the Husband were at the Barr they would give the Wife the benefite of Juramentum in litem in respect of the wrong done by the Defender and the particulars and quantities could not otherwise be proven Actor Longformacus alter Wallace Castlehill Reporter D. 106. Trotters contra Lundy 20. Novemb. 1667. THE Children of George Trotter in Fogorig being confirmed Executors to their Sister Isobel Trotter pursued James Lundie Cautioner in a Bond for James Trotter of the East-end of Fogo for the Sum thereinconteined It was Alledged that the said James being Heir to his Grand-father Alexander Trotter in the East-end of Fogo and the said George Son to the said Alexander and Executor to him they did transact together that the Movables belonging to the said George as Executor should remain with the Heir and the said James and the Defender as Cautioner did for the cause foresaid grant the said Bond blank in the Creditors name wherein the said George filled up the name of John Trotter in Chester his Brother and procured from him an Assignation for the said Isobel his Daughter And that thereafter upon a Submission betwixt the said George and Alexander Trotter Son to the said James granter and principal Debitor in the said Bond The Arbiters ordained the said George to give back to the said Alexander the said Bond and Assignation with a Discharge thereof and therefore the said Isobel being in familia paterna and the said Bond and Assignation being taken and procured as said is by the said George the Father in favours of the Daughter who hath no visible Estate or means to acquire any such Right he was still master of the same And it being ordained to be Discharged as said is the said Debt is Extinct It was Answered that the Bond being filled up and Registrat in the name of the said John Trotter and the samen being Assigned and the Assignation in favours of the said Isobel intimat and after her decease her Executors having confirmed the said Debt all before the said Submission her Father could not by the Submission or any other deed of his Evacuat the said Right Established in the person of the said Isobel and her Executors And as to the Practique betwixt Monimusk and Pittarro whereupon the Defenders alledge it doth not quadrate to the Bond in question it being never delivered but depositat in the Uncles hand Mother Brother to the Child and in the same case It was Found That the Father could not retract a reall Right made in favours of his Child and Heir And here there is Eadem Ratio The Lords Found That the Father being Master of a Bond or Right whereupon nothing followed being granted by himself may throw it in the fire and may consequently Discharge it But the said Right being made publick and compleated by the delivery and which is equivalent by some publick deed by Infeftment if it be Heretable or by Assignation intimated or confirmed Testament if it be Movable he could not thereafter Retreat or prejudge the same And repelled the Defence in Respect of the Answer Hackertoun Lord Reporter Mr Thomas Hay Clerk D. 107. Pollock contra Pollock eod die JOhn Pollock having granted a Bond of 5000 Merks to James his second Son of the first Mariage The said James intented and pursued for payment both Robert eldest Son of the same Marriage Heir of Line and John eldest Son of the second Marriage and Heir of
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
for the Lady Lockhart and Lermonth D. 162. Lord Hattoun contra Paterson 22. Feb. 1672. THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie to Andrew Paterson and the Gift being assigned to the Laird of Aytoun by the said Andrew a decreet was thereupon obtained against the Representatives of the Earl of Dundie for his intromission with the Goods belonging to the Rebel whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle which was Disponed by the said Laird of Aytoun to the Earl of Argyle Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift pursued the the said Andrew Paterson before the Exchequer upon that ground That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Back-bonds and the Clerks are Discharged to give out the same otherwayes and nevertheless viis modis the said Andrew had surreptitiously gotten out the said Gift and ought to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel and of the Expences in passing the Gift he should denude himself in favours of the second Donator And that it should be declared that the said Gift should be affected with the said Bond as if it had been given ab initio And accordingly the Exchequer did decern and declared Whereupon the Thesaurer deput pursued a Reduction of the said Apprysing against Aytoun and the Earl of Argyl upon that reason viz. That the said Gift which is the ground thereof is restricted and qualified and that the said Andrew Paterson is fully satisfied of what is due to him It was Alledged for the Defenders that the Gift was pure and simple without any Back-bond and therefor the Assigney finding it was such and there being no Back-bond upon record was in bona fide to take a Right to the same And the said Decreet of Exchequer being supervenient and res inter alios acta could not be obtruded against a singular Successor but the Pursuer may have action against the Cedent The Lords Repelled the Alledgnce and Found that the Decreet and Back-bond do qualifie the Gift both as to the Donator and to his Assigney The said Decision appears very hard upon the grounds abovementioned and because Back-bonds are only personal obligements upon the Granters and do not qualifie Rights being extra Corpus Juris And his Majestie in granting Gifts of Escheat single or Liferent is in no other case than other Superiors as Lords of Regality having Right to single Escheats whose Gifts cannot be qualified in prejudice of a singular Successor but by provisions contained in the Body of the Right and the import of Back-bonds is only that the Granters being satisfied should be comptable for the superplus but there is not thereby any tye upon them not to dispose upon the same being comptable for the pryce or value of that which they dispone Colingtoun Reporter Having heard the cause at the side Barr. D. 163. Blair contra Blair 23. Feb. 1672. WItnesses being examined before Answer ex Officio It was desired that seing ex facto oritur Jus and the Lords being unclear to decide in Jure before the point of fact were cleared by probation and the point of Law and ground of their Decision is to arise out of the probation and therefore they may see and debate upon the same which was refused seing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi MckenÈie alteri Lockhart c. D. 164. Neilson contra Elizabeth Arthur Eod. die ELizabeth Arthur being charged upon a Bond granted by her self suspended upon that reason that she was cled with a Husband the time of the granting thereof It was Answered she had a peculium and Estate setled upon her by her Father in these Terms that her Husband should have no interest therein but that it should be manadged by advice of the Freinds named by him for the behoofe of her and her Children And that the Sum charged for was borrowed and employed for her use The Lords Found the Letters orderly proceeded D. 165. Lady Lugton contra Hepburn and Creichton 13. June 1672. A Decreet being recovered before the Commissars of Edinburgh at the instance of the Lady Lugtoun against her Grandchild _____ Hepburne Daughter to the deceast Laird of Aderstoun Modifying 400. Merks Yearly for Aliment of the said _____ Hepburne by the space of 13. Years since her Birth The Lords in a Reduction and Suspension of the said Decreet modified the Sum thereincontained being 3500 Merks to the Tenth part of the Sum of 30000 Merks which was mentioned in the said Decreet and considered by the Commissars as the Estate belonging to the said Hepburne So that in respect and upon supposition of the same they modified the said Aliment And by reason the said Estate was intricate and litigious and possibly could not be recovered The Lords ordained the Pursuer to Assign the Tenth part of the said Estate not exceeding 3000 Merks which was done upon that consideration that the Aliment was modified in respect of the said interest And if ex eventu it should be Found that it could not be recovered and that she had no Estate it were unjust that she should be Lyable personally her Grand-mother being obliged at least presumed to entertain her ex pietate materna if she had no Estate of her own Monro Clerk D. 166. Grott contra Sutherland 14. June 1672. TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part The Lords sustained Action against one of them in solidum for implement of the Obligements in the Contract being facti which is indivisible and they being socii exercitores so that the Fraught might have been payed to one of them and eadem ratione any one of them is Lyable and may be pursued in solidum Gibson Clerk D. 167. _____ contra _____ eod die THE Lords Found That a Declarator of Right which ought to be upon 21 Dayes being priviledged by a Bill which is periculo petentis should not be sustained being execute upon a shorter time And Ordained that the Writers to the Signet should nor insert in Bills and Summonds a priviledge dispenceing with the Law and the solennes induciae thereby introduced in favours of Defenders under the paine of 100 Merks for the first fault and deprivation for the second except in cases which by the Law are priviledged and named The President Advocate and others of their number to meet and consider what these should be D. 168. Henderson contra Henderson 20. June 1672. A Bond being produced to satisfy the production in an Improbation The Lords without further probation did Improve and Decern quoad the Defender in respect he refused to abide by the Truth of the same Gibson Clerk D. 169. Gray of Haystoun contra Forbes and Lindsay eod die WIlliam Gray of Haystoun having granted
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
is but a Reduction for not Production The said Point being of great Concernment and the Debate being upon a Bill and the Process not produced that it might appear whether it was intented within the 40 years or not it was not decided D. 197. Cranston contra Brown 21. Novemb. 1674. A Testator having left by Testament a Sum of Money due upon an Heretable Surety and having named his Sister as Executor and universal Legator she was pursued for payment of the said Legacy at the least that being likeways Heir she should denude her self of the Right of the said Sum. It was Alledged for her That the Subject being Heretable the Defunct could not bequeath the same in Testament It was Replyed That when res aliena is left in Legacy the Executor in Law tenetur luere and ought to redeem the same or pay the value and multo magis in this case the Testator having in effect left res sua though upon the matter res aliena as to the power of disposing of the same on Death-bed or by Testament And therefore the Executrix if she be Heir as she is in this Case ought to give the same and if she were not Heir ought to redeem the same as said is The Lords upon the debate amongst themselves considered that in Law legatum rei alienae is effectual if the Testator sciebat rem alienam whereas si nesciebat it is to be persumed he would not have left that which was not his own and tho the Testator upon mistake was ignorant that it was res aliena yet if the Legator was of so near Relation that it was probable he should have left the legacie at least the value if he had knowen it was res aliena the Legacy was effectual And that in the case in question the Legator was the Defuncts Nevoy by his Brother and the Sum that was left was his own tho Heretable as said is and the Testator either knew that he could not dispose of the same being Heretable and was presumed and obliged to know the Law and if he was ignorant in point of Law ignorantia Juris nocet and therefore the Lords inclined to sustain the Legacy But one of their Number having desired that the Decision might be delayed while the next day that he might have his thoughts upon the Case the same was delayed Strathurd Reporter Mr. John Hay Clerk D. 198. Pilton contra the Creditors of the Lord Sinclair 30. November 1674. THE deceast Lord Sinclair having maryed his Daughter with John Sinclair younger of Hermiston did dispone to him his Estate with the Burden of his own proper Debts mentioned in the Right and took a Bond for an Annuity of 8000 merks first in the name of John Watt and thereafter the said Bond being given back he did take another Bond for the said Annuity during his Lifetime in the Name of George Cockburn of Pilton Whereupon the said George did diligence by Comprysing and otherways against the said John Sinclair of Herdmanston and did also take the said John Sinclair's Liferent Escheat And upon the Grounds foresaid and a Suspension of double Poinding against him diverse Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond as being fraudulent and a contrivance to frustrate Creditors and to secure so considerable an Interest for the use of the Debitor contrare to the Act of Parliament 1621. The Lords notwithstanding preferred the said George Cockburn as having Right to the Duties of Herdmanston's Estate by vertue of the said Gift of Escheat reserving to the Creditors their Declarator of Trust or Reduction upon the said Act of Parliament And accordingly the whole Estate of Herdmanston being set in Tack thereafter the Tack-duty is payable to Pilton and the other Creditors in order conform to the said Decreet The Tacks-men being charged at the instance of Pilton Did Suspend upon double poinding pretending they were troubled by other Creditors of the Lord Sinclair And the said Creditors compearing did alledge that they ought to be preferred to Pilton in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Merks was a fraudulent contrivance in prejudice of the Lord Sinclair's Creditors that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation and thereupon might live plentifully his Creditors being defrauded and suffering in the mean time And that the Gift of Escheat of Herdmanstons's Liferent being granted intuitu and upon account of the said interest laborat eodem vitio and was in effect to the behoof of the Lord Sinclair It was Answered for Pilton That tho the said Bond was granted to him without an Onerous Cause yet intuitu of the same and thinking that he was thereby secured he had bona fide alimented my Lord Sinclair and had payed to himself and had engaged to others for him to pay diverse Sums of Money before any interruption made by the Creditors So that before any Diligence done by them his Right became Onerous and the Gift of Escheat of Herdmanston's Estate was taken by him to secure himself as to his relief And that the King and Exchequer did and might give the said Gift to him upon the consideration foresaid and thereupon in the former Decreet of multiple poinding he was preferred to all other Creditors And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair to Mr. George Gibson upon a Back-bond that thereby he and the other Creditors thereinmentioned being satisfied the superplus and benefite of the said Escheat should be applyed for the Aliment of the said Lord Sinclair And therefore tho Pilton should not have Right as he had to the said Tack-duty the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator to the uses foresaid and fall under his Gift It was Answered for the Creditors That they were content the Lords should modify an Aliment for the Lord Sinclair And that Pilton's interest should be sustained effeirand thereto the Superplus being applyed as it ought to be for their satisfaction The Lords for the most part enclined to Find that George Cockburn's Right to the said Annuity was Onerous In sua far as he could instruct that he had payed to or for the use of my Lord Sinclair any Sums of Money before the Creditors Diligence Yet some were of the opinion That the Laird of Hermanston having Married my Lord Sinclair's Daughter and having given the said Bond for the Annuity dureing my Lord Sinclair's Lifetime was a down-right contrivance contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity which if it had been taken in the person of my Lord Sinclair himself would have been lyable to his Creditors might be so conveyed in the person of another that it should not be lyable to the said Lord Sinclair's Debts and being ab initio fraudulent it
by a Bill given in by a Widow Desireing that she may be allowed to intromet with the Cropt and Goods pertaining to the Defunct without hazard of vitious Intromission The Lords thought That such Warrands being Voluntariae Jurisdictionis and the Commissaries being entrusted for securing the Estate of Defunct persons to the nearest of Kin and Creditors and other persons having interest did Remit the Petitioner to the Commissars of the place Sir David Falconer Younger was for the Petitioner and subscribed the Bill D. 222. Meldrum contra Tolquhone 20. January 1675. IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone It was Alledged That the Horning was Null because the Party was Charged only upon six days albeit he dwelt benorth the Water of Dee And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee should be upon 15. dayes at the least And by the 138 Act Parl. 12. K. Ja. 6. It is statute that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh upon Charges upon unlawful and impossible Conditions the same and Horning thereupon should be Null And that there was a Decision in Duries Book in Anno 1625 that Hornings even upon Bonds against persons benorth Dee were Null It was Answered That the Act of Parliament in Anno 1600 was only in the case of Hornings upon Citations or Charges to find Law borrowes or for compearing before the Council as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act. And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration seing after that Act until the said Act 1606 such Clauses that Hornings should be upon 6 dayes were not thought and de facto are not impossible And as to the practique It was Answered that there was a late practique in Anno 1664 upon a Debate in the Innerhouse in the case of Philorth contra Frazer Whereby it was Found That the Act of Parliament 1600. is to be understood in the case foresaid where Hornings are upon Charges of the nature foresaid for appearing before the Council and such like but not in the case in question and others of that nature where Hornings are upon Bonds and Clauses of Registration therein contained which do bind and cannot be questioned by those who do oblidge themselves The Lords considered that the narrative of the said Act doth clear the meaning of the dispositive words and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration seing Parties could not help themselves as to Charges to compear before the Council and others of that nature without a Law But they were Arbiters and could make a Law to themselves as to Clauses contained in Contracts or Writes if they thought them grievous or impossible And that there appeared to be a singularitie in the case mentioned by Durie seing the Charge was given in Orkney upon 6 dayes which could not well be satisfied And therefore the Lords for the reasons foresaid did sustain the Horning Actor Hog and Thoirs alteri Falconer and Forbes In praesentia D. 223. Carfrae contra Telzifer eod die A Person being pursued as representing a Debitor upon that passive Title that he had behaved himself as Heir to the Defunct In sua far as being conveened at the instance of another Party he had proponed a peremptor Defence The Lords Found That the proponing of a Defence upon payment or such like was not such a Deed as could infer the Passive Title of Behaving unless it were adminicled with Intromission or otherwayes Nevoy Reporter Hamiltoun Clerk Vide 10 December 1674. D. 224. Chalmers contra Ferquharson and Gordon 22. January 1675. THE Lords Found That a Person being Pursued as Intrometter and having Alledged that before the intention of the cause she had obtained a Gift of her Husbands Escheat the said Defence is Relevant And that after Intromission there being a Donator confirmed before intention of the Cause or the Intrometter obtaining a Gift tho not declared there being no necessity to declare the same against her self that the same doth purge even Intromission before the Gift Some of the Lords were of another opinion upon that Ground that ipso momento that the parties intromet there is a Passive Title introduced against them which doth not arise upon the intention of the Cause but upon their own Act of behaving and Jus being semel quaesitum to Creditors cannot be taken from them except in the case of an Executor confirmed before the intention of the Cause against whom the Creditor may have Action And that there is a difference betwixt a Donator having declared and an Executor having confirmed In respect the Executor is lyable to Creditors but not a Donator and an Appearand Heir having become lyable by intrometting with Moveable Heirship and behaving as Heir his Intromission is not purged by a supervenient Gift seing his immixing is Aditio facto and there is eadem ratio as to Intrometters who are Executors a tort as the English Lawyers speak and wrongously And in effect by their Intromission adeunt passive and are lyable to Creditors Strathurd Reporter D. 225. Jean Maxuel contra Mr. William Maxuel eod die MR. William Maxuel Advocate being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel for 5000 Merks Alledged due to her by Bond granted by the said Mr. William which she did refer to his Oath did give in a qualified Oath Declaring that he had granted a Bond to the Pursuer at the desire of her said Father but the same was never delivered and was so far from being effectual that by the express order of Sprinkel he was not to deliver the same to the Pursuer without his warrand and that he had given him order to destroy the said Bond in consideration that he was not satisfied with the Pursuers carriage and that he had left her a Legacy which the Defender had payed This quality was thought to be so intrinsick that his Declaration could not be divided so as to prove the granting of the Bond and not the Quality Specially seing the said Quality was adminiculate with Letters which the said Mr. William did produce which were written by Sprinkel to the same purpose Yet by plurality It was Found that his Oath proved the Lybel and Decreet was given against him Thereafter the said Mr. William obtained a Suspension upon that Reason that the Decreet was Extracted by favour of the Clerks not without precipitation after that he had applyed to the Lords and desired that the case might be reconsidered And that the Lords had Ordained the Decreet to be brought back and because the party refused they past a Suspension The case being debated in praesentia The Decreet in foro was obtruded and that it was just upon the matter seing
exceeding 200. merks the Jaylor might enlarge Prisoners for debt without any other Warrand but the consent of the Parties at whose instance they were imprisoned which they did upon that consideration that Poor People if they should be forced to suspend and relax with a Warrand to put them out would be sometime put to more Charges than the Debt doth amount to Five of the Lords did dissent being of the Opinion That the Prison being His Majesties Prison no person could be put in upon Letters of Caption unless the same were under the Signet and no person put in by Warrand of the said Letters could be enlarged without Letters to that effect nam unumquodque dissolvitur eo modo quo contrahitur And the Prisoner being put in for his Rebellion could not be enlarged unless he were relaxed And if Parties did suffer themselves to be taken and incarcerat for small Sums it was their own fault and more unexcusable the less the Sum be and majus minus non variant speciem And it being acknowledged by the Law they being Prisoners for greater Sums they could not be enlarged without a Warrand to put them to liberty and the Law making no distinction of greater and less Sums the Lords had not a Legislative Power to alter or qualifie the same without an Act of Parliament D. 239. Burnet contra Lutgrue eod die A Commission being directed for taking the Oath of a Stranger residing in Holland the Report was questioned upon that pretence that the Strangers Deposition was not subscribed albeit the Commission did bear that he should subscribe the same and yet it was sustained because of the Custom of Holland that the Judges only subscribe and the same was subscribed by them And it was adminiculate with a Letter from him bearing that he had declared before the Commissioners and that he would adhere to what he had declared Gibson Clerk D. 240. Marion Binnie contra Gilbert Scot eod die THE deceast William Scot of Bonington having three Sons William the eldest and Robert and Gilbert The said William by his Contract of Marriage had the Lands and Estate of Bonington disponed to him by his Father Mr. James Scot but was not infeft therein and after his decease his Brother Robert having succeeded to him did renew a Bond granted by the said William in favours of Robert Riddel and having retired the said William's Bond did grant a new Bond for the Sum therein contained And the said Robert having also deceased before he was infeft in the Estate or served Heir to the said William and the said Gilbert the third Son having succeeded a Pursute was intented at the instance of the Relict and Executrix of the Creditor against the said Gilbert as representing the said William and Robert his Brothers at least to hear and see it found and declared that the said Bond granted by Robert was granted by him in contemplation and lieu of the said William's Debt and Bond and that it ought to affect any Estate that did belong to the said William and in special the benefite of the said Contract of Marriage and disposition therein made in favours of the said William It was Alledged for the Defender That he did not Represent Robert nor William upon any Passive Titles and tho he should represent William neither he nor the Estate would be Lyable to the said Debt In respect the samen was extinct and innovate by a new Bond granted by the said Robert whom neither he did nor would Represent And the said Bond being granted only by Robert could not affect any thing belonging to William and he was not concerned to debate upon what account the said Bond was given by Robert The Lords did encline to sustain the Declarator upon that head that the said Innovation was only to the effect the Creditor might be the better secured and satisfied the said Robert being Appearand Heir for the time and who if he had lived would have perfited his Right and obtained himself served Heir to William but being prevented by Death so that the said Bond was altogether ineffectual the Pursuer had condictionem causa data causa non secuta to be Reponed against the said Innovation and the Defender was in dolo pessimo to question the same seing nemo debet locupletari cum aliena jactura And he ought not to have William's Estate without payment of his Debt And some of the Lords did urge and instance the case aftermentioned viz. If the Younger of two Brothers the Elder having gone Abroad and thought to be dead should obtain himself served as Heir to his Father and the Creditors of the Father conceiving that he had Right should renew their Bonds and give back these that they had from the Father and thereafter the Elder Brother should return and should be served Heir to his Father whether in that case the Creditors might have Action against the Elder Brother and Estate notwithstanding of the said Innovation But because the case was New and not without Difficulty The Lords before Answer thought fit to try what way it could be made appear that the said Bond was in lieu of a Bond granted by William Newbyth Reporter Gibson Clerk D. 241. Broun contra Ogilvie eod die A Person being pursued for an Annuity of Money did claim the benefite of Retention conform to the late Act of Parliament But the Lords Found that albeit Retention was granted for relief of Debitors of their Taxation and that the Debitor was alike concerned as to the end foresaid whether he payed the Annualrent as the usura and profite of a principal Sum or as Annuity due upon a personal Bond yet the Act of Parliament mentioned only Annualrents And being as all Acts of Parliament stricti Juris specially such as are correctoriae Juris communis it could not be extended beyond the Letter of the Law Nevoy Reporter Gibson Clerk D. 242. Collonel Fulertoun contra The Laird of Boyne eod die THE deceast Laird of Towie having named his Relict now Lady Boyne Tutrix to his Daughter and in case of her Marriage Collonel Fulertoun The said Collonel pursued the Laird of Boyne for delivery of the said Pupil It was Alledged That her Mother and her Husband would entertain the Pupil gratis It was Answered That Boyne being her Step Father and having no other Relation but that of Vitricus which in Law is not favoured his offer to entertain is not Relevant against the Tutor who has the Trust both of the Pupils person and Estate And it is to be presumed that the offer of the Step-Father is upon a design upon the Pupill her Person and Fortune and that the case had been determined in terminis 4. July 1649. Langshaw contra Mure. The Lords Repelled the Defence and Ordained the Pupil to be delivered to the Tutor Strathurd Reporter Gibson Clerk D. 243. _____ contra _____ eod die THE Lords Found That a Warrand could not be given to cite at the Mercat
Veatch But because some of the Lords in voting were non liquet the Business was delayed Vide supra 9. Febr. 1675. inter eosdem And Vide infra 10. Novemb. 1675. D. 256. Parishioners of Banchrie contra Their Minister 16. February 1675. IN the Case of the Parishioners of Banchrie against their Minister The Lords Found That the Act of Parliament 3. Sess of his Majesties 1st Parl. cap. 20. Ordaining that ilk Minister should have Grass for one Horse and two Kine over and above their Gleb Did import That Ministers should have the said Grass or 20. lib. conform to the said Act albeit their Glebs which they had formerly did extend to four Aikers and much more than would be Grass if the same were left lee to that purpose for a Horse and two Kine Some of the Lords were of a contrary Opinion seing by the Act of Parl. K. Jam. 6. Parl. 18 cap. Where there is no arable Land 16. Soums Grass is to be designed for the four Aikers which the Law appoints to be designed for Glebes and upon the Ground foresaid Ministers having 16 Soums Grass may pretend to have alse much more Grass designed to them as will keep a Horse and two Kine or 20. lib. Hattoun Reporter Hamilton Clerk D. 257. Binning contra Brotherstanes eod die ALexander Binning by Contract of Marriage with Margaret Trotter was obliged to resign a Tenement of Land in Favours of himself and his Wife in Liferent and the Heirs of the Marriage in Fie and accordingly Resignation being made Infeftment was taken to him and his Wife and their Heirs foresaid Thereafter the said Margaret having deceased there being only one Daughter of the said Marriage Margaret Binning the said Alexander married a second Wife and did oblige himself to provide the Heirs of that Marriage to 10000 merks And thereafter did induce the said Margaret his Daughter of the first Marriage after her Minority to give a Bond obliging her to resign the abovementioned Tenement to which she was to succeed as Heir of Provision to her Father in favours of her self and the Heirs of her own Body which failÈiening in favous of Alexander Binning her Brother of the second Marriage and his Heirs whatsomever and to do no Deed to prejudge him anent the Succession The said Margaret Binning being thereafter Infeft as Heir of Provision to her said Father in the said Tenement did by Contract of Marriage with William Brotherstanes oblige her self to Resign the said Tenement in favours of her self and the said William and the Heirs of the Marriage whilks FailÈieing his Heirs whatsomever and upon the said Resignation she and her Husband were Infeft Thereafter the said Alexander Binning her Brother did obtain a Decreet against the said Margaret and her Husband for implement of the said Bond and for granting a Procuratory of Resignation for resigning of the said Tenement conform to the said Bond in favours of the said Margaret her self and the Heirs of her Body whilks FailÈieing in favours of the said Alexander And in obedience to the said Decreet the said Margaret and her Husband did resign the said Tenement and Infeftment was taken to the said Margaret and the Heirs of her Body whilks FailÈieing to the said Alexander After the said Margaret her decease the said Alexander did obtain Decreet against the Tennents of the said Tenement for Maills and Duties which being Suspended by the said William Brotherstanes and turned in a Lybel It was Alledged for him that he ought to be preferred being Infeft long before the Pursuer and 7. years in possession Whereunto It was Replyed That the Defender was denuded of any Right that he had by the Infeftment foresaid in favours of the said Margaret and her Heirs of Provision foresaid and that the Pursuer had thereby Right as Heir of Provision to her To which It was Duplyed That being incarcerat upon the said Decreet against him and his Wife for Implement he had resigned for Obedience as Husband and Authorizing his Wife but did not intend nor could not be decerned to denude himself of his own Right which he had for so Onerous a Cause by his Contract of Marriage The Lords having considered the Procuratory of Resignation granted by the Defenders Wife and himself did Find that he had granted the same not only for Obedience and for his Interest as Husband but for his own Interest and as taking burden for his Wife and so did denude himself of any Right that he had in favours of his Wife and the Pursuer as Heir of Provision And therefore preferred the said Alexander Upon the Debate It was agitate amongst the Lords whether such Clauses in TailÈies viz. That no deeds should be done in prejudice of the Heirs of TailÈie and Provision and their Succession do import that the Granter of such Obligements should not have power to dispose of the Land that is TailÈied and have that liberty which is inherent to Dominium Or if it should import only that they cannot break the TailÈie or provide the Lands in TailÈie to other Heirs The President was of Opinion that the Fiar could not dispone nor do any other Deed And that the said Clause was not restricted to the altering or breaking of the TailÈie But this point was not decided D. 258. Ratraw contra _____ 16. February 1675. AN Appearand Heir having upon an Exhibition pursued by him to the effect he might advise whether he would be Heir obtained the Writes to be exhibited in the Clerks Hands did thereafter upon a Bill desire the samen to be delivered pretending that he had use for the Writes for serving himself Heir and no other person could have any Interest for keeping them but himself The Lords granted the desire of the Bill Albeit some of the Lords thought that the Writes could not be delivered to him unless he were Heir but only such as he should have use of for his Service upon a Ticket to the Clerk to redeliver the same if he should not be served Heir within a certain time And that the Creditors had Interest seing the Appearand Heir if he should resolve not to be Heir might embazle and put the Writes out of the way in prejudice of Comprysers D. 259. Hay contra Gray 4. June 1675. A Merchant having given a Commission to a Skipper to carry a parcel of Salmond to Bourdeaux and upon the Sale of the same there to bring home Wines and Prunes pursued the said Skipper for the said Salmond and profite thereof and referred the Lybel to the Skippers Oath And the Defender having qualified his Oath in these Terms viz. That being upon his Voyage to France he was forced to go in to Holland by Storm of Weather So that he could not go to Bourdeaux And that he was forced to sell the Salmond in Holland and with the price of the same did buy a parcel of Cards and other Goods mentioned in his Oath for the Pursuers use and having embarqued
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
might question But the Lords Found That if the said Deed was on Death-bed the Defunct having not only granted an Heretable Right but having obliged himself his Heirs and Executors to pay the said Sum his Executry and Deads part would be lyable to the said Obligement even as to Moveables acquired dureing the first Marriage which may appear not to be without difficulty seing as to the Conquest during the first Marriage there could be no Deads-part the same being provided to the Children of the first Marriage as said is Tho the Heir of the Marriage may renounce to be General Heir and may take a course to establish the Conquest either in his own or in the person of an Assigney to his behoof and so not be lyable to the Defuncts Obligement without an Onerous Cause Yet it is to be considered whether if they should be served Heirs of the Marriage they would be lyable to the same seing all Heirs represent the Defunct suo ordine and are eadem perâ—ona Or if they be lyable only to the Defuncts Deeds and Obligements for Onerous Causes Item If such Provisions be not in favours of the Heirs of the Marriage but only of Bairns Whether the Bairns will be lyable to the Defuncts Debts And if all the Bairns will be lyable to the same as Heirs of Provision It is thought If Infeftment follow in favours of the Father and the Bairns of the Marriage they must be Heirs of provision to him and that all the Bairns if it be not otherways provided will be Heirs of Provision But these Points did not fall under debate Actores Cuningham alteri Dalâ—ymple Hamilton Clerk In praesentia D. 360. Galbraith contra Lesly eod die THE Lords Found That a Bond being granted by two Persons conjunctly and severally being Merchants and for the price of Merchant Ware the same could not be questioned upon that pretence that one of them was Minor the time of the granting the same It being offered to be proâ—en that he was then and is since a Trafficquing Merchant Monro Clerk Sir David Falconer having reported the same in Order to his Tryal when he was to be admitted a Lord of the Session D. 361. Irving contra Irving 22. June 1676. ALexander Irving of Lenturk raised Suspension and Reduction against John Ross in Strathmore and Francis Irving Brother to Drum of a Decreet of SpuilÈie and wrongous Intromission upon these Grounds that the Witnesses had declared falsely In swa far as being adduced by the Pursuer before the Council they had declared they knew nothing and in the Process before the Lords they declared fully and positively as to all that was Libelled And 2. They declared upon Quantities so exorbitant that the same do amount to the twentieth Corn Whereas in the Countrey where the Cornes grew they have scarce the third Corne. The Lords Found That the Decreet being in foro could not be questioned upon any Ground and in special upon the Testimonies of the Witnesses as false seing there should be no end nor period of Pleas and there being no Protestation for Reprobatores Some of the Lords were of Opinion that as a Decreet founded upon a false Write may be questioned so when the same is founded upon false Testimonies and the falsehood is evident and may be qualified sine altiore indagine the same may be likeways questioned And the Remedy of a Reduction of Decreets in foro being denyed only upon that pretence of Competent and Omitted ought not to be denyed in such cases seing the Ground foresaid that the Testimonies were false doth arise upon the Depositions of the Witnesses and was neither known nor competent to the Defender who is not allowed to see nor to question dicta testium And a remedie which in Law and Reason ought to be allowed is not taken away because it is not protested for by a Party who for the time did not know that there were any Ground for the same Newbyth Reporter Gibson Clerk D. 362. _____ contra Sheil eod die A Comprysing being deduced at the Instance of an Assigney against the Representative of the Debitor as lawfully charged and the Compriser upon his Infeftment having intented a pursute for Mails and Duties It was Alledged That the Cedent was debitor to the Defunct so that the Debt due to the Defunct did compense the Debt due by him and the Ground of the Comprysing being satisfied the Comprysing is extinguished Which case being Reported to the Lords they had these Points in debate and consideration amongst themselves viz. 1. That Compensation is only of personal Debts and of Sums of Money de liquido in liquidum but is not receivable in the case of Real Rights and Lands and Pursutes upon the same Seing in such processes there is no Debt craved but the pursute is founded upon a Real Right And some of the Lords being enclined to think that the Alledgance is not founded upon Compensation but upon Payment or the Equivalent viz. That the Cedent habebat intus and in effect and upon the matter was satisfied being Debitor in alse much as was due to him by the Defunct And the Lords are in use to favour Debitors whose Lands are Comprised and in order to extinguish Comprisings to sustain process for Compt and Reckoning and declaring the same to be extinct not only by Intromission but by Compensation Others were of the Opinion that tho Compensation ipso jure minuit tollit obligationem where it is proponed yet if the same be not proponed before the Decreet whereupon the Comprysing proceeds and when both Debts are in finibus of a personal Obligement the Debt contained in the Comprysing cannot be said to have been payed before the Comprysing and after the Comprysing is deduced it cannot be extinguished but either by Intromission within the Years of the Legal or by Redemption 2. Whatever may be pretended as to the Cedent that he could not be in bona fide to compryse for a Debt due to him having alse much in his hand as would satisfy the same yet such pretences are not competent against the Third Person having bona fide comprysed or having Jus quaesitum As in the case of a Horning upon a Decreet it could not be obtruded to the Donator that the Debt was satisfied The Obtainer of the Decreet being Debitor to the Defender And if this should be sustained expired Comprysings and Infeftments thereupon being now a most ordinary surety may be easily subverted upon pretence that the Cedent was Debitor in Sums equivalent to the person against whom the Comprysing is deduced And there is a great difference betwixt payment and satisfaction either by actual payment of the Debt or by Intromission with the Maills and Duties of the Lands comprysed which is obvious and easie to be known and betwixt the pretence of satisfaction by Compensation seing payment is exceptio in rem and extinguisheth Debts as to all effects and Intromission is so notour that
well if not more to a Personal Faculty than to an Heretable Fee 2. The said Clause is conceived per verba maxime personalia viz. That the half of the Conquest should be disposed by her and if she should think fit which are verba arbitrii facultatis 3. In dubiis minimum is to be understood solitum ut evitetur absurdum And Respect is to be had to the quality of the Person And albeit mean Persons in their Contracts of Marriage do sometimes provide that the Longest liver may have all It is not usual nor can be instanced that ever in a Contract of Persons of quality a Fee was provided to a Wife It being the great design of the Marriage of such Persons to raise a Family to the Husband and it being very ordinary that a personal Faculty should be given to the Wife 4. If the Contract had been extended it might and ought to have been extended in these Terms That the Lady should Liferent the haill Conquest and in case of no Issue she should have the Personal Faculty foresaid And tho the Conquest had been provided to the Husband and her and the Longest liver of them two and the Heirs of the Marriage whilks faiÈieing the one half to his Heirs and the other to hers her Husband would have been Fiar and in the case foresaid her Heirs would have been Heirs of Provision to him as to the half of the Conquest Actores Sinclair Bernie c. alteri Lockheart c. D. 365. Doctor Wallace contra Symson June 1676. A Bill of Exchange being drawn by a Merchant in Edinburgh upon his Correspondent at London payable to a Merchant at Bristol the person to whom the said Bill was payable was not in England for the time but had gone to Ireland but his Freind having broken up the Letter direct to him and having Found enclosed the said Bill of Exchange did indorse the same to be payed to another person upon the place who did accordingly present the said Bill to the Merchant on whom it was drawn who did accept the same conditionally when it should be right indorsed And thereafter the person to whom the said Bill was payable having duely indorsed the same to be payed as the Indorsation did bear The Mercant upon whom the said Bill was drawn did in the interim break before the Bill swa Indorsed was presented to him There having interveened betwixt the date of the Bill which was 2 d. January and the Right Indorsement of the same which was about the end of April about 4. Moneths So that the Question was whether the Drawer of the said Bill should be Lyable to Refound the Sum thereincontained It was Alledged That he could not be Lyable In respect the said Bill was not returned to him protested either for not Acceptance or for not Payment And albeit in Law and by the custom of Merchants the Drawer be Lyable unless the Bill be payed yet that is ever understood with a Proviso that Diligence should be done and Protests should be taken unless the Person upon whom the Bill had been drawen had been evidently non solvent the time of drawing the said Bill which could not be Alledged in this case seing the Defender had drawen upon the same person after the said Bill to the value of 2000 lib. sterling which had been Answered And had likewayes Answered Bills of his of great value whereas if the Bill in Question had been returned Protested he would have retained the Provision he had in his Hand or done Diligence to recover the value of the said Bill or might have countermanded the said Bill and given an other Bill payable to a person that was upon the place The Lords notwithstanding Found That the Defender and Drawer of the said Bill should be Lyable But some of the Lords were of another Judgement And the Defender Repined and gave in a Bill desiring to be Heard D. 366. _____ contra _____ 4. July 676. IN a Suspension against an Assigney upon a Reason of Compensation viz. That the Suspender had Right to the equivalent Sum due by the Cedent by an Assignation prior to the Assignation granted by the Cedent to the Charger It was Answered That the Assignation granted to the Charger was intimate before the Intimation of the Assignation granted to the Suspender Whereunto It was Replyed That ipso momento that the Suspender got the Assignation foresaid being thereby Creditor to the Cedent he had a Ground of Compensation against the Cedent and consequently against the Charger as Assigney And an Assignation without Intimation is a sufficient Right and Ground of Compensation unless there were an other Assigney to the same Sum competing upon that Ground that he had a better Right by an Assignation intimate The Lords notwithstanding did not allow Compensation and Found the Letters orderly proceeded Newbyth Reporter Mr. Thomas Hay Clerk D. 367. Buchanan contra Logie eod die THE Lords Found That a person out of the Country being cited at the Mercat-Cross of Edinburgh and Pear and Shoar of Leith upon 60. Dayes warning to be holden as confest tho he was not cited personally and that the Decreet could not be questioned upon that Ground as Null But if he were Living and desired to be reponed to his Oath there might be Ground to Repone him Newbyth Reporter Mr. John Hay Clerk D. 368. Lesly contra Fletcher 5. July 1676. SIR John Fletcher being obliged by Contract of Marriage to provide Dam Marion Lesly his Wife of a second Marriage to the Liferent of a Sum of 10000 lib. did thereafter Infeft her in the Lands of Gilchristoun being of more value and of a greater Rent Whereupon she having obtained a Decreet against the Tennents The Lords Found her Right being granted stante Matrimonio and thereafter revocked Null In swa far as it exceeded the Provision in her Contract of Marriage And sustained her Decreet only effeirand thereto and ordained her to be Lyable for the superplus until the said Sum of 10000 lib. should be employed for her Liferent conform to her Contract of Marriage Forret Reporter Mr. Thomas Hay Clerk D. 369. Cheisly contra Edgar of Wadderly eod die EDgar of Wadderly being Charged upon an Indenture betwixt him and Samuel Chiesly Chirurgeon for payment of the Sum thereincontained for his Brothers Prentice-fee and Entertainment dureing his Prentice-ship And having Suspended the said Bond and intented a Reduction thereof upon Minority and Lesion The Lords Found That the Second Brother having no other Means nor Provision his Eldest Brother who was Heir to his Father and had the Estate ought to Entertain him and to put him to a Calling And did not sustain the Reason of Lesion Forret Reporter Gibson Clerk D. 370. Pitrichie contra Geight eod die SIR Richard Maitland of Pitrichie having obtained a Gift of Recognition of the Estate of Geight There was thereafter a Minute betwixt him and his Father and the Laird of Geight
whereby it was agreed that Pitrichie who and his Predecessors had an ancient Wadset of the Lands of Achincreive and others being a part of the said Barony should have the Reversion Discharged by Geight and that Geight should give him a new Right of the said Wadset-Lands irredeemable and holden of the King and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Merks And that on the other part Pitrichie should Dispone to Geight the rest of the Estate and the Right he had thereto by the said Recognition Thereafter Pitrichie having intented Declarator for Nullity of the said Minute upon pretence that Geight did refuse and fail to perform his part did obtain a Decreet and did enter into a Bargain with the Earl of Aboyn and did dispone to him a considerable part of the said Estate that by his Power and Interest in the Countrey he might be maintained and be able to enjoy the rest But before the granting of the said Right to Aboyn Geight had intented a Reduction of the said Decreet of Nullity upon that Reason That the said Decreet was given In respect he had not the Writes at that time in hand to produce and to instruct that he was able to give a Right of the said Wadset-lands to be holden of the King and that they were now found upon search of the Registers So that he had not been in mora and the not production of the said Writes ought not to be imputed to him but to the Confusion of the Times his Writes being scattered and his Father having been long time a Sufferer and Prisoner for serving the King The Lords Found That the said Decreet being in effect upon a Certification for not Production and Geight condescending and offering to instruct that he had not been negligent and the occasion and manner that the said Writes were not in his Hand and how he had recovered the same he ought to be reponed against the same And that by the Reduction before the granting of the Right to Aboyn it was res litigiosa and Aboyn ought to be in no better case than Pitrichie D. 371. _____ contra _____ eod die A Bond granted by a Woman stante matrimonio for payment of a Sum of Money being ratified judicially It was Found That the Ratification did not bind her being of a Deed null in Law tho it was judicial being likewayes stante matrimonio D. 372. Blair of Kinfauns contra Mr. Thomas Fouler 6. July 1676. IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler It was Found That an Action at the instance of the Executors of a Minister for building a Manss and refounding the Expences of the same is competent against the Heritors for the time and their Representatives but not against a singular Successor and that it is not Debitum fundi Newbyth Reporter Gibson Clerk D. 373. Rynold contra Erskines eod die THE Lords Found That a Father having assigned certain Bonds for provision of his Children the Creditors have not only an Action of Reduction competent to them but a personal Action to refound the Sums uplifted upon the Bonds if the Assignation should be found to be fraudulent But did Reserve to the Defenders to debate whether the same was fraudulent The Defenders having Alledged that the same were granted by their Father having a plentiful Fortune for the time so that he might lawfully provide his Children Newbyth Reporter D. 374. Crauford contra Gordon eod die IN the Case Alexander Crauford contra Sir Lodovick Gordon The Lords thought the point in question viz. Whether or not a Backbond being granted by the Compryser the time that he did receive an Assignation whereupon he Comprysed or by a person having gotten a Disposition did affect the said Rights not only as to the Granters of such Back-bonds and their Representatives but likewayes as to Singular Successors And if the same should be Found to affect if it did affect only while the said Right was personal and before Infeftment but not after The Lords thought the said point to be of that importance as to the Consequence and Interest of the People that it was recommended that they should have their thoughts thereupon to the effect that the same may be decided with great consideration And accordingly this day the case being fully debated among themselves It was carryed and found by plurality of Votes That such Back-bonds do affect even as to a Singular Successor tho extra corpus Juris And albeit they be granted after the receiving of such Rights And that they affect Comprysings even after Infeftments has followed thereupon during the Legal but not after Diverse of the Lords did Argue and Vote against the said Decision and in special A. I. C. N. B. S. T Upon these Grounds 1. A Singular Successor does not succeed in universum Jus as an Heir but only in Jus Singulare And if the said Jus be simple and pure without any quality in corpore Juris any extrinsick quality or Deed may bind the Granter and his Heirs but not the Singular Successor who neither can nor is obliged to know and take notice of any quality that is not in the Right 2. The quality of a Right is an Accident of the same and Accidentis esse est inesse So that in Law where the same is not in corpore Juris it doth not affect the Right as to Singular Successors 3. Upon the Considerations foresaid Reversions and Bonds for Granting Reversions do not militate against a Singular Successor unless they be in corpore Juris or Registrate And tho there be an express Statute to that purpose yet it doth not follow a contrario where there is no Statute Back-bonds should affect seing the said Statute is made conform to the Common Law and is Declaratory as to Reversions being then most in contemplation of the Parliament but doth not derogate from the Common Law in other Cases 4. Back-bonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent and cannot operate more than if a formal Retrocession were made in favours of the Cedent which could not prejudge a Singular Successor unless it were intimate 5. It would be an irrepairable prejudice to the People and to Singular Successors who finding a Right pure without any quality are in bona fide to think that they may securely take a Right thereto And yet should have no remedy if upon pretence of Back-bonds and Deeds altogether extrinsick their Right may be questioned 6. As to the pretence of the prejudice to the People viz. That they are in use to grant Assignations in order to the deduceing of Comprysings thereupon and may be frustrate if the Back-bond should not affect the same is of no weight Seing they trust the Assigneys And it is their own fault if they Trust persons that doe not deserve Trust And they have a Remedy by intimateing the
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate
without consent of the Persons thereinmentioned and Letters of Publication were not raised thereupon but Inhibition was only used 2. That Interdictions are a Remedy for secureing weak persons and ought not to be a snare to others And the Law favours and helps these that are decepti and not decipientes And that the Pursuer was in effect circumveened in swa far as the said Interdiction was not Registrate till the Pursuer was in Terms of Bargaining and they had searched the Registers and had not found any such Interdiction and the only Interdictor on Life was Witness to the Bargain and got a part of the price and the rest of the price was payed to Creditors anterior to the Interdiction And the Pursuer relying upon the Ingenuity of the Disponer tho he might have secured himself by taking a Right to the said Debts did extinguish the same by taking Discharges and Renounciatons The Lords being divided in their Opinions The case was not decided this day _____ Hay Clerk In praesentia D. 382. Inter eosdem 10. November 1676. THE Lords sustained the Interdiction abovementioned the Defenders offering to prove that the Person Interdicted was not rei suae providus And Found That the person interdicted was thereby in the condition of Minors And that he and his Heirs could not question any Disposition or other Deed done by him upon the naked head of Interdiction unless they alledge and qualify Lesion And that the Pursuer of the Reduction may prove that the Bargain was profitably made and that the pryce was in rem versum And the Lords declared they would not be nice as to Probation but Reserved the consideration of it to themselves It was further Replyed That the Interdiction is Null being Execute by a person that was not a Messenger being deprived which was Repelled In respect of the Answer that it was offered to be proven that notwithstanding of the Sentence of Deprivation he was holden and tentus reputatus to be a Messenger Notwithstanding it was Triplyed that the Pursuer in Fortification of the Sentence of Deprivation and his own Deposition offered to prove that it was the common Opinion of the Country that the Executor was not a Messenger then being deprived Which was thought hard by some of the Lords being of the Opinion that at least habitus and tentus opinio ought to have been allowed to both Parties to prove Reserving to the Lords to Consider the Probation and to Judge according to that which should be Found most pregnant D. 383. Paterson contra Johnstoun eod die IT was desired by a Bill That a party against whom Witnesses had been used and who had declared might be allowed to qualify the Inhability of the Witnesses and that a Terme should be Assigned to that purpose Whereupon it was Agitate among the Lords If a Reprobator should be sustained by way of exception whereupon there would be a new Litiscontestation And it was urged by some of the Lords that if the Inhability of the Witnesses should be qualified upon the ordinary Grounds whereupon the Witnesses themselves are interrogate viz. That they are not worth the Kings unlaw and such like That Reprobator ought not to be sustained Especially the Party being heard to object against the Witnesses And yet the Lords sustained Reprobator by way of exception and without Limitation In respect the Oath of the Witnesses concerning their own Hability is only an Oath of Calumny and notwithstanding thereof a Reprobator may be pursued by way of Action And the Objections against the Witnesses may come to the Parties knowledge after they have declared And as there may be Two Litiscontestations if an exception of Falsehood or any other should arise upon the Production of the Writes there is eadem ratio as to the Witnesses seing the Objections against them could not be proponed before Litiscontestation And if they be Relevant they ought to be proven And it is the interest of both Parties that the Reprobator should be received by way of exception ne lites protelentur But the Lords Ordained a Condescendance to be given in in Write of the Grounds of the Reprobator and to be given to the other party that he might be heard to debate upon the Relevancy of the same Gibson Clerk D. 384. Inglis contra Boswell 14. Novem. 1676. A Father having granted Bonds of provision in favours of his Children being in familia and having thereafter contracted Debt It was Found That the Creditors tho posterior are preferable to the Children And tho in other cases It is presumed That Bonds or Writes being in the hands of these to whom the same are granted were delivered ab initio yet in the case of Children the Presumption lyes against them that they are still in the hands of their Parents so that they are masters of the same And eo ipso that thereafter they contract Debt they revock the said Provisions In swa far as they may prejudge their Creditors unless it be offered to be proven that they were delivered and were the Childrens Evidents the time of the contracting the said posterior Debt Newtoun Reporter Mr. John Hay Clerk D. 385. Davidson contra Wauchop 16. Novem. 1676. JOHN Wauchop one of the Macers before the Lords having taken a Right by Translation to a Bond of 700 Merks alledged granted by the deceast James Davidson Jaylor in the Canongate to _____ Horseburgh And a Reduction and Improbation being intented of the said Bond The Lords did decern in the Improbation and Found the said Bond to be false and forged and remitted _____ Dumbar Forger to the Justice Albeit the Writer and Witnesses and the Debitor and Creditor being all deceast there were no means left for improving the said Bond directly Which the Lords did In respect of the indirect Articles aftermentioned and the concurrence in great number and pregnancy of the presumptions and evidences of falsehood arising intrinsically upon the inspection of the Write and the compareing of Papers and otherwayes viz. 1. That the Debitor Davidson was a person most Responsal and the Creditor Horseburgh indigent So that the Bond being of date 1644. It could not be thought that if it had been a true Bond the Creditor or his Relict would or could have wanted payment so long nothing being done to recover payment until after 1669. That the said Bond being Assigned to _____ Laurie was transferred in favours of John Wauchop after all the means of Improbation had failed by the decease of Writer and Witnesses 2. The said _____ Laurie and John Wauchop being examined upon Oath It appears by their Declaration that the Assignation of the said Bond in favours of _____ Laurie was never delivered to him but was still retained by _____ Dumbar who had Marryed the Relict of the said Horseburgh and pretended that the said Assignation was made by Horseburgh in favours of his Wife but left Blank And that Lawries Name was filled up to the use and in behalf of the
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
AN Assignation being granted for relief and payment of certain Sums mentioned in the Assignation for which the Assigney was Cautioner for the Cedent the same was questioned upon that head that it was never delivered but was still in the Cedents Hands The Lords Found That the said Assignation was never delivered And yet they Found That it was an effectual Evident in favours of the Assigney In respect the Cedent had made the same publick by a Horning thereupon Sir George Lockheart c. alteri Cuninghame c. In praesentia D. 443. Ker contra Kers 25 January 1677. A Disposition being questioned as being made in lecto at least delivered then It appeared by the Deposition of one of the Witnesses used for proving the Lybel that the said Write was subscribed diverse Years before the Disponer was on death-bed and that the same was delivered before death-bed to the said Witness and that the Defunct having called for it on death-bed for drawing two other Dispositions of the Lands contained therein one in favours of the Pursuer the Disponers Heir and the other in favours of a Son of the Disponer who was Father to the Person in whose favours the Disposition in question was made And upon debate amongst the Lords what should be the import of the said Testimony seing the Depositar did not declare in what Terms the same was given to him by the Disponer whether to the behoof of the said Person in whose favours it was made or not or upon any other account for keeping the same so that the Disponer might call for and alter it It was Found 1. That the Disponer might have revocked the same In respect it did not appear that it was delivered to the behoof of the Person to whom it was made This Decision seems to be hard in respect the Disposition was now in the Hands of the Receiver so that it was to be presumed that it was delivered either to him or to the said other Person to his behoof and the delivery ought to be construed and presumed to have been ut operetur and the nature of the Act it self imports that it should be to the behoof foresaid It not being to be imagined that if the Disponer had intended to have retained the Power in his Hands either to make the said Right effectual or not he would have given it out off his Hands 2. The Lords Found Upon the Testimony foresaid That the Disponer having revocked the said Disposition not simply but to the effect foresaid that the said two Dispositions should be granted The Pursuer therefore had not Right to the whole Lands contained in the said first Disposition but that the same should divide conform to the said two Dispositions Mr. Thomas Hay Clerk In praesentia D. 444. Procurator-Fiscal of Glasgow contra Cowan 26 January 1677. THE Commissar of Glasgow having sustained Process at the Instance of the Procurator-Fiscal for the tryal of a falsehood of Executions whereupon a Decreet had proceeded and having upon Probation of the falsehood decerned the user of the said Executions to pay 300. lib. to the Procurator-Fiscal as a Fine and the said Decreet being suspended The Lords Found That the Commissar was not competent Judge to the improbation of Executions by way of Action seing they cannot reduce their own Decreets and Improbation is a Reduction ex capite falsi Justice-Clerk Reporter Mr. Thomas Hay Clerk It is to be considered that the most part of Decreets befor Inferior Judges are for Null-Defence and upon false Executions and it were hard that there should be no Remedy but by Improbations before the Lords which may depend long and are very chargeable So that Decreets before Inferior Judges being for the most part for inconsiderable Sums the Remedy should be worse than the Mischief It appears indeed that the Commissars have not power to Fyne that being a Criminal Jurisdiction and that they are not Judges to Improbation by the indirect manner The Tryal of Falsehood by circumstances and presumptions being Altioris Indaginis and of that Difficulty that it ought not to be left to an Inferiour Judge Item The Tryal of Falsehood as to that effect that Falsaries may be punished ought not to be by any Inferior Judge But it seems to be just and necessary that Parties grieved by such Decreets should be allowed to pursue the obtainers of the same to hear and see them reponed against the said Decreets upon that Ground that they were not cited to the same to be proven by the Witnesses and Executer himself declaring that they pursue to that effect allanerly And it appears not to be inconsistent with Law and Form that this course should be taken seing the Judge does not reduce his own Decreet ex capite iniquitatis and it may be provided that such Pursutes tho they be upon the matter Improbations are only to the effect foresaid and that no other effect or consequence shall follow upon the same and multa fiunt per indirectum which cannot be directly And if a Party who is holden as confest should raise a lybel before an Inferior Judge that it may be Found that he was not Contumax being out of the Countrey or Sick or detained by Storm or some other insuperable Impediment and that therefore he should be reponed and the Decreet should be holden as a Lybel such a Pursute would not be incompetent tho in effect it would be a Reduction upon the matter D. 445. Donaldson contra Rinne 27 January 1677. IT was moved whether or not a Decreet of an Inferior Judge being questioned upon that Ground of Iniquity that the Lybel was not proven and the Depositions of the Witnesses being produced by the Pursuer ab initio The Lord of the Outer House may advise the Probation Or if it ought to be advised by the whole Lords It was Found That the Depositions being produced as said is the Lord may give his own Interloquitor as upon any other Write produced ab initio to instruct the Lybel Tho some of the Lords were of Opinion that the Probation ought to be considered and advised by the haill Lords And it was hard that the Probation being found sufficient by a competent Judge it should be in the power of one single Lord to review the same and find the contrare Mr. John Hay Clerk D. 446. Murray Pupil contra _____ 31. January 1677. A Pupil of 4. Years of Age being pursued upon the Passive Title of a Charge to enter Heir and the Friends conceiving that it were fit to Renounce none of them being Curators nor being willing to meddle and to authorize the Pupil to renounce The Lords Decerned but superceeded Personal Execution until the Pupil should be past Pupillarity Castlehil Reporter D. 447. Master of Rae contra Sinclar of Dumbaith 1. February 1677. SInclar of Dumbaith Sandside and others having in a Hostile manner invaded the Lord Raes Country There was a Criminal pursute intented against them for the
Crimes committed upon the occasion foresaid but the said pursute being taken away by a Remission there was thereafter a SpuilÈie pursued at the instance of the Master of Rae having Assignation from his Father and by his Tennents whose Goods had been Robbed and taken And it being Alledged against the said Pursute that it was prescrived The Lords sustained the Reply that the Prescription was interrupted by the foresaid Process before the Justices And again this Day a Summonds of SpuilÈie which had been formerly intented being produced and it being Alledged that by the said Summonds and Execution upon the same the Prescription was interrupted The Lords Found That the same did not interrupt In regard it appeared that the Names of the Defenders have been Blank in the saids Summonds and since filled up with another Ink And it appeared by the Executions that the same were at the instance of Gray of Arbo and others mentioned in the Summonds without specifying the said other Persons and the Defenders had settled with and satisfied Arbo So that it appeared that the Names of the said other persons had been filled up in the body of the Summonds of purpose to be a Ground for the said Reply But tho the Lords did not sustain the Process as to the effect of giving the Pursuer Juramentum in litem In regard the Goods Libelled were Libelled to extend as to the number of Good and the Damnage sustained by the Pursuers Cedent to vast Sums exceeding the value of that whole Country yet the Lords did adhere to their former Interloquitor That they would consider the time of the advising the profits of the Goods as in a SpuilÈie It occurred to some of the Lords and was moved whether Juramentum in litem being given to the Party wronged and upon that account that the quantities and the Kinds of Goods taken from him could not be so well known to others and proven if the same be a personal favour Or if it may be extended to an Assigney Newbyth Reporter D. 448. Holmes contra Marshall 2. February 1677. THE Lords Found That a Woman being provided by her Contract of Marriage to a Liferent of the Conquest of Lands or other Goods that should be acquired dureing the Marriage And the question being of Moveables and she having accepted a Third of the same she could not return to crave a Liferent of the other two parts tho it was Alledged by her she had not accepted the same in satisfaction of what she could claim 2. It was Found That a Woman being provided as said is to a Liferent of all the Moveables her Husband had the time he Marryed her and which he should acquire during the Marriage It was in her Option either to take her to her Liferent of the whole or to claim the 3d part in property but making Election could not varie Tho this was Found by plurality yet some of the Lords were of Opinion that by the Provision foresaid she has only a Liferent and that she had not the said Election Seing eo ipso that she is provided to a Liferent of all it is intended and agreed there should be no Communio bonorum It being inconsistent that she should be both Proprietar and Liferentar usufructu formali Newbyth Reporter Gibson Clerk D. 449. _____ contra Tait 6 February 1677. THE Lords Found That a Bond being granted on Death-bed with consent of his Appearand Heir for his Interest bearing an obligement to pay a Sum of Money Is to be considered not as a Legacy but as a Bond inter vivos Seing by the Common Law all persons are in legitima potestate as to the granting of Bonds And our custom whereby persons on Death-bed are not in in liege poustie is qualified with an exception viz. unless the Heir consent in whose favours the same is introduced Castlehill Reporter D. 450. _____ contra _____ eod die THE Lords Found That Appearand Heirs may be pursued as behaving before the year expire seing eo ipso that miscent adeunt passive And as to that pretence that they would be wronged if it should have appeared by the probation that they did not meddle It is of no weight Seing the Lords may modify Expences D. 451. _____ contra _____ 29. February 1677. AN Exhibition being pursued at the instance of an Heir of Conquest And it being Alledged by the Heir of Line that some of the Lands whereof the Writes were craved to be exhibited were in Holland and that by the custom there the Eldest Brother did not succeed as Heir of Conquest but all the Brothers and Sisters equally so that the Writes ought not to be delivered to the Pursuer who had only an Interest as to the fifth part whereas the Defender had four parts having acquired three from his Brothers and Sisters and having one himself and he having the far greater interest in the Land and Writes ought to have the keeping of the same being Lyable to make them forthcoming to the Pursuer The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes In that same Cause It was Alledged That as to the Lands in Scotland the Defuncts Right was only by a Comprysing which was personal and whereupon no Infeftment had followed and which belonged to the Heir of Line as Tacks and Reversions The Lords nevertheless Found that the Heir of Conquest has Right to the same conform to a late Decision D. 452. Purveyance contra Knight 8 June 1677. THE Lords Found Upon the advising of a concluded Cause after Debate in praesentia in the Case in question That Liber Rationum and a Compt-Book of a Merchant containing an Article of Debt due by him to the Pursuer was a sufficient Probation In respect the said Compt-Book was written with the Merchants own Hand and he was known to be a person of great Honesty and Exactness and the Article was so clear that the time therein mentioned he stated himself to be Debitor in the said Sum all by gone Annualrents being payed and in an other part and Article of the said Book he did acknowledge that he had borrowed the said Sum and was special as to the time and there was a great Confidence and near Relation betwixt him and the Creditor and therefore the Lords decided as said is in respect of the said Circumstances but thought it hard that Compt-Books in Scotland where there is not that exactness that is else where in keeping Books should have that Faith that is given to them elsewhere Mr. Robert Stewart Actor alteri Cuningham Mr. John Hay Clerk In praesentia D. 453. Campbel contra Taite eod die THE Lybel being referred to the Defenders Oath and he having declared upon a general Interrogator that he was not owing the Sum acclaimed It was urged the time of the advising of the Oath that the Defender should declare whether or not he had gotten a parcel of Lint and what way he had payed the price of the
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
he was in the said process It were inconsistent that his Tennent should have the benefite of a Possessory Judgement and not himself In praesentia D. 394. Rutherford contra Weddel 5. December 1676. THE Lords In a Suspension at the instance of a Bankrupt who was Prisoner did allow him to come out without the habite Because It was represented that the Debt was for the most part not contracted by himself but by his Father Albeit some of the Lords were of the Opinion that the Act of Sederunt bearing no distinction and being made upon good consideration and conform to the practice of all other Nations That Bankrupts should be known by a habite to be persons that deserved no Trust and that others may be affrighted from contracting or under-going Debts which they are not able to pay And that the pretence foresaid was frivolous it not being presumable that a person would be Heir and become Lyable to Debts that he had not Contracted unless there were Effects and sufficiency of Estate to pay the same And if such pretences should be allowed the Law would be altogether elusory Gosford Reporter Mr. Thomas Hay Clerk D. 395. The Town of Glasgow contra Greenock 7. December 1676. THE Town of Glasgow having intented a Declarator against the Laird of Greenock containing these Conclusions viz. That it should not be lawful to Greenock or his Burgh of Barony to import any Goods from Abroad which by the late Regulation and Act of Parliament concerning the priviledges of Burghs Royal being the 5. Act of the 3d. Session of his Majesties Second Parliament belongeth to the Royal Burghs and are to be imported by them privative and in special Wine Brandy and Salt 2. That if they should be found to contraveen the said Act of Parliament that the unfree Goods deprehended should not only be Escheat but their whole Goods conform to former Laws and Acts of Parliament against unfree Men. It was Alledged for the Defenders That at least they ought to be in the same case as Strangers and Unfree-men of Forreign Nations who may import without limitation making Offer to the Royal Burghs and if they do not buy the same from them being obliged to Sell them in whole sale and at the price to be limited and appointed by the Burgh where Offer is made and that the Burghs of Barony had been in use of importing as Strangers the same being qualified as said is And the said Custom was not contrary to Law but conform to diverse Acts of Parliament and in special the 100 Act of K. Ja. 5th his _____ Parliament bearing that if any Free-man or other Scots-man dwelling within this Realm should bring home Wines Salt or Timber That the Magistrates of Burghs where the same is entered should set a price upon the same which imports that Unfree-men may import the same The Lords Found That by the said late Act of Parliament The matter of Trade is so regulated That as the Burghs of Barony their priviledges to import Goods and Commodities that they could not import before are settled upon them and on the other part Royal Burghs are secured from the encroachment of Burghs of Barony So that they cannot import but the particulars allowed to them by the said Act Therefore that upon no pretence the Burghs of Barony and Unfree-Men can import any other Goods and that they are not to have the Liberty that Strangers have Seing Strangers are allowed the Liberty of Trade and Commerce being qualified as said is And if the same were denyed there would be no Trade betwixt our Merchants and them Whereas the Liberty of Trade and to import Forreign Commodities is only lodged and settled upon Royal Burrows upon good Considerations and intuitu of the same they are Lyable to a 6th part of Taxations and other publick Burdens 2. It was Found That albeit in the late Act of Parliament there be not mention of Salt as one of the Commodities allowed to the Royal Burrows and contained in the specification that the same does only belong to the Royal Burrows Seing they are founded as to all Commodities not expresly allowed by the said Act to Burghs of Barony and Regality in Jure And the Burghs of Barony are excluded by the said Act as to all others except these allowed to them expresly by the said Act and come under that general viz. Such as are necessary for Tillage or Building or for the use of their Manufacture And whereas it was pretended by the Defenders that Salt is necessary for the curing of their Fishes The Lords Found That Manufacture intended by the Acts of Parliament is only to be understood of Works erected by Companies or others for making of Cloath or such like about which many poor People are Employed and Entertained And tho there be skill in cureing Herring they are not a Manufacture but a Native Commodity without any alteration of the form and only qualified by the cureing of the same And that upon that pretence the Defenders ought not to be allowed to import Salt But was Recommended to some of the Lords being also upon the Council to move that a course might be taken for Regulateing the price of Salt that it be not Arbitrary to the Royal Burrowes to sell the same at such Rates as the Burghs of Barony cannot without prejudice buy the same So that they may be forced to desist from making or exporting Herring The Lords Found That the said Act having defined the pain to be the Escheat of the Goods deprehended And not the Escheat of the Contraveeners whole Goods And that as to Goods not deprehended the pain ought not to be greater And that these who import unlawful Goods contrare to the Act tho they be not deprehended may be pursued for the value of the same and no farder Some of the Lords were of another Opinion as to this Point and thought that seing the late Act of Parliament doth mention only the case of unlawful Goods deprehended and doth regulate the former Practice as to the attaching and affecting of the same and it is inconsistent that both the Goods deprehended should be escheat and likeways the Contraveeners other Goods should be escheat That therefore the former Laws are still in vigour Actor Lockheart c. alteri Cuningham In praesentia D. 396. Marshal contra Holmes 12 December 1676. AN Advocation being produced after the Judge had decerned but before he had cleared and dictate the minute of the Decreet which he did upon the Bench immediatly after production of the Advocation The Lords Found the Decreet Null as being spreto mandato But in respect of the Circumstances and that the Judge had decerned before as said is they turned it in a Lybel Thesaurer-deput Reporter Gibson Clerk D. 397. Durham contra Durham eod die SIR Alexander Durham having upon Death-bed given Bond to the Lord Clermount for 20000. merks and at the same time having ordained his Nevoy Mr. Francis Durham his
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life