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A50746 Pleadings in some remarkable cases before the Supreme Courts of Scotland since the year 1661 to which the decisions are subjoyn'd. Mackenzie, George, Sir, 1636-1691. 1673 (1673) Wing M192; ESTC R27547 158,540 250

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frugal because they hope their Estate may remain with their Posterity encourage not such as resolve to shake loose by their Prodigality what was establish'd by their wise Predecessours By favouring the Creditors Defences you will but gratifie the prodigality of Heirs or the laziness of Creditors whereas by sustaining my Clients pursute you will secure us as to our own pactions and as to your decisions you will perpetuat Noble Families and bound the Luxury of such as are to succeed The Lords sustain'd the Pursute and repell'd the Defences propon'd for the Oreditors For the Lady Carnagie and her Lord against the Lord Cranburn THIRD PLEADING Whether Tax'd-wards be lyable to Recognition My Lord Chancellor THe late Earl of Dirletoun having no Children besides two Daughters and having an Estate consisting of Lands in Scotland and England did very judiciously at first resolve to marry one of them in Scotland and the other in England and in pursuance of this design he bestowed Elizabeth the eldest upon William Earl of Lanerick Secretary of Scotland Brother to Duke Hamiltoun but which was more a person admir'd for his heroick Vertues and whose Alliance was courted at any rate by the most eminent Families of both Kingdoms The younger of these Daughters named Diana was match'd thereafter to the Lord Cranburn and as the Earl of Lanerick could not but have justly expected all or at least the far greatest share of that Estate So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Portion Yet such is the capriciousness of old men that the Earl of Dirletoun did in anno 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun dispone the Lands of Innerweek Fenton c. failing Heirs-male of his own body to Iames Cecil his Grand-child and the Heirs-male of his body His Majesty finding that the said Estate was most illegally dispon'd to Iames Cecil without His consent as Superiour they holding Ward of Him and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick and so the Lands recogniz'd by the said Disposition did gift the saids Lands to the Lord Bargeny for the behoof of the Earl of Lanerick upon which Gift of Recognition there is now a Declarator pursued by the Lady Carnagie eldest Daughter to the said Earl of Lanerick who thereafter became Duke of Hamiltoun wherein she craves that it may be declar'd by you that she has the only Right to these Lands There are very many Defences propon'd for the Lord Cranburn which I shall endeavour thus to satisfie The first is Recognition has only place in feudo recto proprio whereas these Lands hold Tax'd-ward in which manner of holding all the casualities are taxed to a very inconsiderable sum which sum is designed to be the only advantage that shall accress to the Superiour and the reason why Ward lands recognize when they are sold without the Superiours consent is because the Superiour having so great interest in the Lands which hold by simple Ward as to have the Ward and Marriage of the Vassal the Law did therefore obliege him not to alienat that Land without the Superiours consent which reason ceaseth where the Ward is tax'd the Superiours interest becoming very inconsiderable by the Tax nor can it be imagin'd but that the Superiour having dispensed with the great casualities of Ward and Marriage has consequently dispensed with the said restraint Cui datur majus datur minus praesertim ubi minus inhaeret majori est ejus accessorium For satisfying which difficulties your Lordships will be pleas'd to consider that our Law appoints all Ward-lands to recognize if sold without the Superiours consent and makes no distinction betwixt simple and tax'd-ward the general is founded upon express Law and there is no express warrand for excepting tax'd-ward 2. Seing these Lands could not have been fold before they were tax'd by what warrand can they be sold since they were tax'd Seing though the casualities of Ward and Marriage were tax'd and thereby these casualities expresly remitted except in so far as they are tax'd yet there is no power granted to sell without the Superiours consent Nor is that priviledge remitted by the Superiour Et fendum alteratum in una qualitate non intelligitur alteratum in aliis actus agentium non operantur ultra concessa 3. The power of selling without the consent of the Superiour is different from the casualities of Ward and Marriage which are here only tax'd for Fewholdings are oft-times burdened with this restraint and this restraint was of old taken off expresly by warrands under the Quarter-seal without taxing the other casualities So that this priviledge differs from these and the one cannot be comprehended under the other The second Defence is that by the Feudal Law Recognition ob alienationem feudi est crimen delictum feudale against which error etiam probabilis ignorantia excusat as is clear lib. 2. tit 31. The words are Quod enim dicitur alinatione feudum aperiri domino intelligendum est cum à scientibus alienatum est beneficium which are the words of the said Law whereupon Socinus reg 153. though he do give it as a rule that Emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit conform to the civil Law l. ffinal C. de jure emphyteutico he subjoyns these words Fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam and accordingly Craig de recognitione lib. 3. diages 3. and in the case of disclamation lib 3. diages 5. layes down for an undoubted principle that ignorantia crassa excusat feudalia delicta And here the subject of the question is not in jure in thesi whether Ward-lands should recognosce but in facto hypothesi his Right being of the nature and in the terms foresaid he might dispone without hazard as to which an error in him who was an illiterat man was very excusable especially having consulted Peritiores and having been assur'd by very eminent Lawyers that there was no hazard in disponing those Lands without the Superiours consent they holding Tax'd-ward which was sufficient to have defended him in feudo amittendo To which it is answered that ignorance of the Law excuses no man and the case having been at best dubious the Vassal should not have hazarded upon what the Law might construct to be a disowning of his Superiour and since every man is oblieged to know the nature of his own Few the Law doth presume that every man doth know it Nam quod inesse debet inesse presumitur and therefore Craig doth very well conclude pag. 344. tit de recognitione that ignorantiam pretendens vix audiendus est cum sit crassa ignorantia feudi sui conditionem ignorare and though he observes there that excusabitur qui feudum suum non militare credidit cum militare est yet that cannot be
to assist them when they are upon death-bed which is an occasion at which not only their wit and memory leave them but wherein they are oft deserted by all other Friends besides these who design to prey upon them And I am so zealous in this service that I cannot detain my self any longer from opening to you the matter of fact in this Cause which may be saved by its very merits if ever any was The case my Lord stands thus The late Lord Cupar had by his Fathers kindnesse and out of the Estate of the Family a considerable Fortune bestowed upon him and what addition it has receiv'd since is rather the product of so considerable a stock then of that Lords industry so that he having died without Heirs this Estate should have return'd to the Family not only by a legall succession but by the rules of gratitude Yet having in a second Marriage at the Age of threescore and ten married a Lady by whom he got no great Fortune she induc'd him to dispone his whole Estate Honours and Title in her favours and in favours of the Children to be procreat betwixt her and any other Husband the first bribe was ever given by a dying Husband to invite a Wise to a second Marriage and though a Brother may raise up seed yet we never hear that a Woman rais'd up seed to her Husband of which Disposition there is a Reduction rais'd by the Lord Balmerinoch who is Nephew to the Defunct and should have been his Heir wherein he quarrels this Disposition as made upon Death-bed by the Lord Coupar after contracting of that sickness whereof he died and as done in prejudice of him as appearand Heir My Lord I know that Legis est jubere non suadere and that omnium quae fecerunt majores nostri non est reddenda ratio yet this Law or rather ancient custom whereby persons upon death-bed can do nothing in prejudice of their Heirs can justifie it self equally well by Reason and Authority The reasons inductive of this excellent Law are first That after men are sick their judgements grow frail with their bodies and the soul of man wants not only then the pure ministry of well-disposed Organs but is likewise disordered by the infection of the languishing body wherefore the Law observes lib. 2. Reg. Maj. cap. 18. vers 9. Quod si quis in infirmitate positus quasi ad mortem terram suam destribuere caeperit quod in sanitate facere noluit praesumitur hoc fecisse ex fervore animi potius quam ex mentis deliberatione Which presumption seems to be very well founded for it is not imaginable that any man who is reasonable would pull down his own house and Nature and Reason being the same thing varied under different expressions he who overturns the one cannot be sound in the other The second reason is because men ordinarily upon Death-bed being surpris'd with the approach of death and terrified with the prospect of what follows it do so little value the affairs of this world which they begin now to find so little able to repay their criminal pains and love that to evite the importunity of such assistants as are like Vultures busie about the Carrion upon such occasions they are content to ransome time and quiet with the carelesse losse of their Estate and who would not buy time then at a dear rate So that this Law is the great fence of our sick-bed as well as of our infirm judgments The third reason is the great respect our Law bears to ancient and Noble Families who are the corner-stones of the Kingdom to whose valour our Law has oft ow'd its protection and so could not refuse it s to them And sure if either the importunity of Mothers for their younger Children or of Wives for themselves could be successful the Heirs would succeed to a heavy and empty Title and upon this consideration the Parliament did lately refuse to allow Parents the power of providing their younger Children to small Portions upon Death-bed I know also that some adde as an original reason for this Law the avarice of Monks and Church-men who perswaded men to Wodset for themselves rooms in Heaven with great Donatives to pious uses to restrain which excesse Venice and other Kingdoms have taxt the value of what can be so bestow'd And albeit the restriction imposed by this Law may seem destructive of Dominium which is jus disponendi and that by the Law of the 12. Table Ut rei suae quisque legassit ita jus esto So that this seems to want all foundation either in common feudal or the Laws of other Nations Yet if we examine we will find Dominium is in very many moe cases then this and in more favourable restricted by all Laws and that quaerela inofficiosi Testamenti is sounded upon the same reason with this Law and that by the Laws of Spain and Flanders so great is the favour of Noble Families Noblemen cannot at any time dispone their Estates but must transmit to their Posterity what ever Lands they got from their Predecessors But though no Nation joyned with us in this Law this should rather induce us to maintain it as being truly a Scots Law and we must be so charitable to our Predecessors as to believe that they would not without very cogent motives have restricted their own power of disponing and have receded from the custom of all other Nations and we should be as carefull of our fundamental Lawes as the Spainiards are of their privat Estates And of all persons against whose importunity the Law should guard us sure our Wives are the chief for they have the nearest and frequentest accesses the most prevailing charms and arguments and of all creatures women are most importunat and are most dangerous when disoblieged wherefore the Law hath wisely forbidden all Donations betwixt man and wife fearing in this mutual love and hatred though in modesty it hath only exprest the first And sure if this Donation should subsist every woman would think her self affronted as well as impoverished if she could not elicit a Disposition from her Husband of some part of his Estate And to what condition should a poor man be reduc'd and with what inconveniences urg'd when he behoved either to disobliege his Wife or ruine his Heir and to load his Fame or his Estate So that the Lord Coupar hath in this prejudg'd Husbands and Heirs and hath violated jus Parentale Maritale It is alledged for the Lady that the reason is not relevantly libelled seing we do not condescend upon a form'd disease under which the Lord Coupar labou●ed the time of the Disposition and of which disease he thereafter died Nor is tenderness and infi●mity sufficient of it self to m●intain this reason of Reduction especially in old men whose age is a continual infirmity and yet is not by Lawyers called a sickness sickness being a preternatural whereas age is a natural infirmity