Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ— Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to â—e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ— that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
they searched for him immediatly after The Lords Repelled both Defenses seing the Escape was in day light during which the Towns Officer should Guard the Prison Elizabeth Nisbet Lady contra Murray Eodem die ELizabeth Nisbit pursues a Poinding of the Ground of certain Lands wherein she was Infeft by Iames Wood her Husband Compearance is made for Patrick Murray who alleadged that he is Infeft by her Husband his Debitor in the same Lands and ought to be preferred It is answered for the Lady that she ought to be preferred because both their Annualrents being base albeit her Infeftment be posterior Yet her Husbands Possession being her Possession and she being Infeft before Patrick Murray's Infeftment was cled with Possession must be preferred It was answered for Patrick Murray First That a Husbands Possession should be the Wifes Possession cannot be understood in an Annualrent because her Husband never Possessed an Annualrent but the Property This the Lords Repelled and found the Possession of the Property as jus nobilius to contain the Annualrents eminenter 2ly Patrick Murray alleadged that the Husbands Possession being the Wifes is only introduced in favours of Contracts of Marriage favore dotis That because Wives cannot Possess during their Husbands life therefore his Possession is accompâ—ed theirs But this Infeftment in question is not founded upon the Contract of Marriage but upon a posterior Charter of a different Tenor. 3ly Patrick Murray used citation before Câ—ndâ—esmess next after the Ladys Infeftment and thereupon obtained Decreet in March which must be drawn back to the Citation So that the Husband could have no Possession betwixt the Ladys Charter and his Diligence there being no interveening Term. It was answered for the Lady that this Priviledge is allowed to Wifes that their Husbands Possession is theirs during their Marriage favore datis which may be without a Contract 2ly The Husband being in present current Possession from the very Date of the Wifes Seasine his Possession is sufficient to validate hers The Lords found the Ladyes Infeftment to be first validat by Possession It was further alleadged by Patrick Murrayâ— that this Infeftment was donatio inter virum uxorem not being founded on the Contract of Marriage which was satisfied before at least it is to the prejudice of him a lawful Creditor who was Infeft before the Lady and therefore seeing the Ladys Infeftment is so free and lucrative both parties being now Disputing the Possession and power therein The Ladys Infeftment cannot prejudge him That the Contract of Marriage was satisfied he condescends thus that the Husband was oblieged to Infeft his Wife in certain Lands and to make them worth 18. Chalders of Victual or otherwise at her option to Infeft her in an Annualrent ita est she made her option and was Infeft in the Property after which she cannot return to this Annualrent in question It was answered for the Lady that the Clause being conceived in her option must be Interpret her option not to receive the Infeftment but to enjoy either of the two she pleased First A Seasine cannot import her choise which might have been given by her Husband without her knowledge upon the Preccept contained in the Contract of Marriage unless it were instructed that she did accept the same by a Seasine propriis manibus or otherwise and that her Infeftment was a valid effectual Infeftment 3ly Albeit that Article of the Contract of Marriage were satisfied by taking her choise yet she being thereafter Infeft upon her Charter produced in her Liferent Lands and in the Annualrent in Warrandice thereof or with power to her to make use of the Annualrent it self principaliter at her option albeit her choice once made will exclude her from the annualrent principaliter yet not in so far as she is Infeft therein to warrand and make up the principal Lands which can be accounted no Donation nor Deed in prejudice of a Creditor because it doth but make real and effectual the personal obliegement of warrandiceâ— contained in the Contract It was answered for Patrick Murray that this alleadgance non competent hoc loco but he must only poind the Ground until the Lady obtain a Declarator of what is defective of her Liserent Lands but cannot come in by way of Reply The Lords found that the Ladys acceptance of the Liferent Infeftment satisfied the obliegement in the Contract of Marriage and did not sustain the posterior Charter to give her any further choice but sustained the Right of annualrent constitute therein in warrandice of the Liferent Lands hoc loco and ordained the Lady to condescend upon the several Rooms what they payed and what was wanting that she might be preferred in the first place and Patrick Murray in the second place Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange Eodem die ALexander Livingstoun as Assigney by Mistriss Margaret Forrester and Sornbeg her Husband to some Debts owing to her by her Father The umquhil Lord Forrester having Charged the remnant Daughters and Heirs of Line craves Adjudication of the Estate of Forrester and Barony of Grange wherein the Lord Forrester Died Infeft Compearance is made for a Creditor of Grange who produces a Back Bond granted by the Lord Forrester to the Laird of Grange bearing that the Infeftment was in trust to the use and behove of the Laird of Grange and only to the Lord Forresters behove for Relief of Debts he should be ingaged in for Grangeâ— and alleadged that he being Granges Creditor and now insisting against Grange who has renunced to be Heir for Adjudging of the Estate of Grange for Granges own Debt he has good Interest in this Process to alleadge no Adjudication of Grange Estate because it is only in Trust except in so far as may be extended to my Lord Forresters Relief and if the Pursuer condescend upon any Distress or Ingagement he will instantly relieve the same The Pursuer answered that he being now in an anterior Diligence to this Party ought not to be stopped in his Diligence but must be admitted to Adjudge from the Lord Forresters Heirs whatever was in his Person And the other Party may also proceed according to his Diligence to Adjudge the Back Bond and when he pursues thereupon he shall have an answer 2ly There is no reason to stop the Adjudication and to force the Pursuer to condescend upon my Lord Forrestersâ— Debts or Interest because a Creditor cannot possibly know them and therefore Adjudications are always granted generally of all Right the Debitor had and is the only ground upon which the Adjudger can pursue the havers of the Debitors Rights to Exhibit and Deliver them and thereupon to found Processes and Condescendences but cannot be urged to condescend before he obtain Adjdication and also insinuat that he would take his Adjudication with the burden of the Back Bond But some of his Advocats resiled therefrom The Lords having considered the Case
any burden and Liferenters who having a speciall Competent Provision this general Clause being but adjected as uncertain is not so favourable or so to be extended seing the Husband did not Infeft the Wife in his own time in the Conquest And therefore found her to be lyable to the Annualrent of this Sum which they found instructed by the Hubands Declaration where the Ladies Father is a subscribing Witness Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die WAlter Young Iohn Govan and Hendrie Hope by a Letter written to any that they should Buy Kows from in the Highlands desired that they might use the Bearer of the Letter kindly and for whatever quantity of Kows they bought they should answer such Bills as he should draw upon them therefore Hendrie Hope being broken Iames Gray as Assigney pursues the other two for the whole who alleadged they were only lyable for their own Parts It was answered that they were oblidged to answer such Bills as the Person intrusted by them should draw and they produce a Bill drawn by him upon them or either of them It was answered that such Bills can only relate to the Quantity and not to the Quality and manner of oblidging seing if they had so intended they would have oblidged them and either of them or it would have born what he should draw upon them or either of them should be answered The Lords found every one of them lyable in solidum for they thought that the Clause being dubious was to be interpret against the Writers and the Sellers of the Kows were bona fide to rest upon the interpretation of the Persons intrusted Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665. SIr Iohn Leslie as Assigney constitute by Sir William Dick to a Bond oblidging Francis Sinclar as Principal and young Dun as Cautioner to deliver 30 Chalders of Bear at 10 merk the Boll Dun alleadges absolvitor because he was Minor in Familia Paterna and so his Father was his Curator of Law and therefore his subscribing as Cautioner was null being without his Fathers consent It was answered the alleadgeance was not competent by exception against a clear liquid Bond. Secondly That the Defense is only competent in the Case of Curators chosen The Lords found the Defense Competent by way of Exception but before answer to the Relevancie ordained the Parties to condescend upon Duns age the time of his Subscription and whether he did then administrat or go about any other affairs Dame Rachel Burnet contra Lepers December 23. 1665. BY Contract of Marriage betwixt Mr. Iohn Leper and his Father and and Dame Rachel Burnet on the other part both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel who with concurse of Prestoun her present Husband pursues the Sisters of the said Mr. Iohn Leper as Heirs and otherwayes representing him and their Husbands for their entrests and likewise Doctor Balfours Wife only Daughter of an of the Sisters as Heir to her Father and Mother against whom there was Decreet of Registration obtained during their Lifetimes together and on this ground That the Defuncts Husband did by Contract of Marriage Disposition or otherwayes obtain Right to the Portion of his Wife one of the Sisters and Heirs and therefore is lyable in payment in quantum lucratus est It was alleadged for Doctor Balfour and his Wife that she was willing to renounce to be Heir to her Mother but as for the other passive Title as representing her Father who was locupleâ—ior factus it is no wayes relevant for Marriage is a cause onerous and Tochars are granted ad sustinenda onera matrimonij and therefore are never counted fraudulent deeds or without an onerous cause nor do they fall within the Act of Parliament 1621. against fraudful alienations neither was the Defenders Father lyable though there was a Decreet of Registration against him because before any Execution the Marriage was dissolved It was answered for the Pursuer that that member of the Lybel stands relevant because the Defenders Mother being Heir to her Brother the Contracter could not transmit her Estate to her Husband without the burden of her Brothers Debt and it is a most unquestionable Ground in Law and Equity quod nemo debet cum alieno damno locupletari and therefore Creditors are still preferred to Portions of Children though given for their Tochar The Lords found that Member not Relevant that Decreet was obtained against the Husband and Wife stante matrimonio seing it received not Execution and as to the other Member they thought that if there were but a moderat and ordinar Tochar proportionable to the burdens of the Marriage it would not infer Repitition or if the Tochar was great or an universal Disposition of all the Heirs Right they thought the Husband would be lyable in so far as it was above a proportionable Tochar and therefore before Answer Ordained the Contract of Marriage to be produced and the Pursuer to condescend if there was any other benefit accresced to the Husband by his Wife then by vertue of the Contract It was further alleadged for the Lady Pitmedden one of the Sisters on Life that she could only be lyable for her own sixth part as one of the six Heirs Portioners It was answered by our Law that all Heirs were lyable in solidum There was several Decisions alleadged on either hand on the 7. of February 1632. Hoom contra Hoom Where the Lords found the Heirs Portioners lyable but for their own share Another February 15. and March 21. 1634. Watson contra Or Whereby one of the Daughters having a Disposition of the whole Estate was found lyable for the whole Debt And another Ianuary 24. 1642. Where one of the Heirs Portioners having Disponed her share to the other and thereby being insolvent that other was found lyable in solidum The Lords having considered the Case found the Heir Portioner lyable iprmo loco only for her own share untill the rest of the Heirs Portioners were discust but determined not whether these who were solvendo should be lyable in solidum albeit the Debt exceeded their Portion or only intirely for their own share and for as much more as the value of their Succession could amount to Laird of Cesnock contra Lord Bargany Eodem die THE Laird of Cesnock and the Lord Bargany and Balcarras being bound conjunctly and severally in a Bond Cesnock being distressed for the whole takes Assignation and pursues Bargany for two thirds who alleadged payment and because it was a publick Debt he produced an incident in termino which the Lords sustained not because it buire no warrand to cite Cesnock the Principall Partie and the Executions were within 48 hours by one Person in Kyll Renfreu Fyfe and Edinburgh and so suspect but they superceeded Extract of the Decreet to the first of November contra Wilson and Lodwick Callender
Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ— acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
spoke expresly of commodaâ—um estimatum to Transfer the peril on the borrower and there is no Law adduced to restrict it not to take place in that which is estimat only in the case of Deterioration ubi lex non distinguit nec nos and as to the meaning of the Clause in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse So this Bond being the Defenders words blame himself if he made not that clear The Defender answered that albeit that be one Rule of Interpretation yet there are others stronger making for him viz. In dubiis respondendum pro reo in dubiis pars mitior aequior sequenda Now it cannot be thought that Parties would have been so unreasonable as to have demanded Restitution if the Kingdom were lost and the Cannon taken after all Diligence done to keep them but this is the most special Rule In dubiis respondendum secundum naturam actus ant contractus The Lords found that by the Nature and Tenor of this Contract the Defenders were not lyable for this Accident that happened and that they were not in mora nor culpa but had done all Diligence and therefore found the Cannon lost to the Pursuer and Lender and Suspended the Letters simpliciter Thereafter upon pronuncing of the Interlocutor The Pursuer offered to prove by the Writter and Witnesses insert in the Bond that it was expresly Treated and Agreed and that the meaning of the Clause was that the Defender should be lyable to all hazard and desired the Witnesses at least to be Examined ex officio The Defender alleadged that the Pursuer having gotten a Term already to Examine Witnesses ex officio and the Parties being Examined he could not now demand a new Term neither could a clear Clause in a Bond be altered by Witnesses The Pursuer answered that the Clause was at best but dubious and so the meaning was not to prove against the Writ but to clear the same which is ordinar The Lords would not give any further Term for leading Witnesses but found that alleadgance only probable by the Oath of the Party Patrick Andrew contra Robert Carse November 25. 1668. PAtrick Andrew having sold twelve piece of Wine to Margaret Henderson who keeped a Tavern after she was Proclaimed to be Married to Robert Carse Flesher a part of which Wines was vented before the Marriage and a part thereof vented after the Marriage but the Marriage Dissolving within three or four Moneths by the Wifes Death the most part of the Wine remained unsold at her Death the Merchand pursued the Wife for the Price and the Husband for his Interest some dayes before she dyed after her Death her Husband vented no more of the Wine but caused the Magistrates Inventar the same and delivered the Keys to them Patrick Andrew who sold the Wine doth now pursue Robert Carse the Husband for the price of the Wines who alleadged Absolvitor because there was no ground in Law to make him lyable for his umquhil Wife her Contract and Obligement ex Empâ—o he being only lyable jure mariti which being Dissolved by her Death he is free for he is neither Heir nor Executor to her The Pursuer answered that the Husband having allowed the VVife to continue the Venting of the VVine she was thereby preposita negoliis mariti and thereby her medling must be the Husbands medling who must be lyable for the whole price especially seing he never made offer of the remaining VVine to the Pursuer though he knew his Interest and had pursued him for the price so that the VVines having perished it must be attribute to his fault and the Merchant who knew not the condition thereof cannot lose the same 2dly The Pursuer offered to prove that the Defender put in his own Nephew to be Taverner after he Married the VVoman 3dly The ground in Law that the Pursuer insists on against the Husband is in quantum lucratus est by his Intromission with the VVine and price thereof and any thing that has been lost through his fault is alike as he had been Profiter in the whole The Defender answered that he declyned not to be lyable in so far as he was Profited viz. for the price of the VVine Vented during the Marriage which he was content to refer to the Pursuers Probation how much was Vented then but he could not be lyable for what was Vented before the Marriage though after the Proclamation much less for what remained unsold after the VVifes Death neither was he in any fault by not offering the VVine to the Pursuer nor might he lawfully do the same because the Marriage Dissolving within year and day the propertie of the whole VVines returned to the VVifes Executors and nearest of Kin and the Husband had no interest therein as he would have had if the Marriage had continued year and day neither had the Merchant any right to the Wines the property whereof was in the Wife and her Executors but had only a personal Obligation for the price and therefore he could not deliver the Wine nor medle therewith without vitious Intromission so that he did the most exact Diligence by Inventaring and Delivering the Keys to the Magistrates so that there being ten piece of Wine then in the Celler the Defender could only be lyable for so much of two Piece as the Pursuer should prove sold during the Marriage The Pursuer answered that the Defender having once intrometted and medled with this parcel of Wine he is in so far lucratus and he can no more sever some Punsheons unspent from the rest nor one part of a Punsheon Vented from the remainder so that he can offer nothing back of the parcel re non intâ—gra nor can he alleadge that the whole ten Piece was of the Pursuers Wine because the Pursuer offered to prove that this Deceast Wife bought other Wine from other persons at that time and it were against Law and Reason to put the Merchand who is a stranger to prove what was Vented during the Marriage and how much of the Pursuers Wine remained after the Marriage for that was the Defenders part to enquire and not the Pursuers part who is a stranger The Lords found the Defender not lyable for that part of the Wine Vented before the Marriage nor yet for what remained unspent after the Wifes death seing he Inventared and abstained but they found the Husband obliged to prove both wat was spent before the Marriage and what of this Wine remained after the Marriage If the Pursuer proved there was other Wines in the Celler and so found the Defender lyable foâ— the whole except in so far as he proved was sold before the Marriage and remained after the Wifes Death The Daughters of Mr. James Mortoun Supplicant November 26. 1668. THe Daughters and Heirs of Mr. Iames Mortoun gave in a Supplication to the Lords making mention that the
Father being Infeft in an Annualrent effeirand to the principal sum due to him by the Lord Balcombie they did thereafter obtain Decreet for the principal sum and thereupon Appryzed the Property wherein they stand Infeft holden of the King in which Appryzing there is a Reservation exprest but prejudice of the Infeftment of Annualrent and now being desirous to be Infeft in the Annualrent as Heirs to their Father and that themselves were Superiours by the Infeftment on the Appryzing and conceived it not proper for them to Infeft themselves did therefore desire the Lords to grant VVarrand to direct Precepts forth of the Chancellary for the King to Infeft them The Lords having considered the case and argued the matter amongst themselves whether it were more secure and legal that they should be Infeft by the King upon their Supplication or that they as having Right to the Property by their Infeftment on the Appryzing should grant Precepts for Infefting themselves in the Annualrent as Heirs to the Annualrenter or whether their Infeftment in the Superiority would consolidat the Annualrent without Infeftment The difficulty against the Kings Infefting of them was that the King Infefts none but these that holds immediatly of Him or upon the disobedience of the immediat Superiour supplendo vices To which it was answered that the King may supply the place of the immediat Superiour either when he will not or cannot Infeft his Vassal and the Petitioners conceive that in this case they cannot and both being extraordinary Remeeds the Lords may do the same and have done it in former Cases The difficulty as to Infefting themselves was that the Right of Property and jus nobilius did extinguish the Right of Annualrent and yet the Right of Property may be Reduced and then they would be necessitat to Defend themselves by the Annualrent and therefore it is not an absolute Extinction but in tali casu and therefore they have reserved the same in the Appryzing The difficulty as to the third way was that if the Right of Superiority should be Reduced they should be without Infeftment at all The Lords found that they might either Infeft themselves by their own Precept or might get Precepts from the King as was desired periculo petentium or they might make use of both together Mr. Alexander Seaton contra George Seaton of Menzies December 2. 1668. MR. Alexander Seaton Heir and Executor to Iames Seaton his Brother pursues George Seaton as Heir to his Father Iames Seaton for making his Fathers Tutor Accompts as being Tutor to the Pursuers Brother and for instructing that he was Tutor produced several Writs Subscribed by him as Tutor Testamentar The Defender alleadged First That the condescendence was not relevant to Instruct the Defenders Father Tutor unless the Testament whereby he was nominat were produced otherwayes his acknowledgement can only make him but Pro-tutor and so not lyable for all omissions and no sooner lyable then after the date of these Writs 2dly Albeit the Defenders Father had been Tutor yet by the Writs produced it is evident that he was but one of more Tutors and therefore no Process against him till they be all called The Pursuer answered that the acknowledgement to have been Tutor was sufficient against him who Subscribed the same and that there was no necessity to call all the rest seing the whole Tutors were lyable in solidum and as ordinarly parties bound conjunctly and severally may be conveened conjunctly or severally so may Tutors who as others may except upon the performance of other Tutors as well as their own neither is the case of Tutors alike with Cautioners who are not lyable in solidum for Tutors as they are lyable conjunctly and severally for the whole Office so are they conveenable conjunctly and severally for the same The Lords Repelled the first alleadgance and found the Writs produced instructed the Defenders Father Tutor and not only Pro-tutor for if the Testament had been produced shewing other Tutors so that the Acknowledger could not have been tutor testamentar it would have made him but Pro-Tutor but that not being it instructed him Tutor As to the other point in respect the Tutor was dead and his Heir only but conveened who could not know the Administration the Lords would not sustain Process till they were also called Agnes Goodlat contra George Nairn December 8. 1668. AGnes Goodlat as representing the umquhil Wife of George Nairn pursues for the third of the Moveables belonging to him the time of his Wifes Decease It was alleadged for the Husband that before Division the Heirship moveable behoved to be drawn It was answered that there could be no Heirship of a man that was living It was answered that albeit there was no actual Heirship yet the best of every kind was Heirship Moveable wherein the Wife had no Interest Which the Lords sustained and Ordained the Heirship to be first drawn Earl of Argile contra George Stirling December 9. 1668. THe Earl of Argile having pursued George Stirling to Remove he alleadged Absolvitor because he stood Infeft on an Appryzing It was Replyed that the Appryzing and Infeftment could not defend him because the Person from whom he Appryzed being a Vassal of the Earl of Argiles and his Right not being Confirmed by the King the same could not exclude the Pursuer the Kings Donator and the Appryzer could be in no better case then his Author The Defender Duplyed that he was in better case because he being Infeft by the King before the Pursuers Gift when the King had both Superiority and Property it is equivalent to him as if the King had Confirmed his Authors Right It was answered that Infeftments upon Appryzings that pass in Course and are not noticed in Exchequer cannot prejudge the King and take away the benefit of the Gift which must pass by a several Signature Which the Lords found Relevant and Repelled the Defense and Duply and Decerned Scot contra Aitoun December 11. 1668. MR. Iames Aitoun having Disponed the Lands of Grainge with the burden of 12000. Merks to be payed to his Daughters Iohn Scot having Married one of the Daughters in their Contract of Marriage the Daughter Anna Aitoun Assigns her part of the 12000. Merks to her future Spouse and in the same Contract he acknowledgeth the Receipt of the Money from Mr. Robert Aitoun the Debitor and therefore with consent of the said Anna Discharges the said Mr. Robert by a Contract of the same Date betwixt Iohn Scot and Mr. Robert relating the Contract of Marriage but acknowledges there was no Sums payed for the Discharge contained in the said Contract but that the Security contained in this Contract was granted therefore and therefore he gives a new Heretable Security to Iohn Scot the Marriage Dissolves within year and day by the Death of the said Anna without Children she in her Testament names the said Iohn Scot her Husband her Executor and universal Legator George Scot as
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown
was alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ— and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
by the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâ—ssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to
Prisoners seing they had actually received this Prisoner but their keeping him in a private house ten dayes while a Treaty was continued with the Creditor was found not to infer disobedience of the charge or payment of the debt Iune 8. 1670. Cheap contra Magistrates of Faulkland Magistrates were not found lyable for the debt of a Rebel escaping who was arrested in their Tolbooth but the arrestment was not formal and whereas it bear that upon Caption the Messenger came to the Tolbooth and commâ—nded the Prisoner to continue in Prison as being arrested for that debt and that in presence of the Iaylour and that intimation was made to the Magistrates seing the intimation to the Magistrates was altogether improven and the arrestment in presence of the Iaylour contained three Witnesses whereof one affirmed and the other denyed and a third was dead and the Messenger was then Excommunicate for Crimes Iune 18. 1670. Hay contra Magistrates of Elgin Magistrates were found lyable for the debt of a Rebel escaping out of their Tolbooth albeit the Tolbooth had â—our locked Doors without one another and that the Rebel had gotten in some Masons Tools and broken up all the Doors in the Night seing they had not Chains and Bonds locked upon the ouâ—er sides of the Doors to which the Rebel could not reacâ— albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes February 11. 1671. Will contra Town of Kirkaldâ—â— Magistrates were not found lyable for the debt of a Person Incarcerate in their Tolbooth whom they had suffered to go free up and down their Streets several times whereupon the Creditor took Instruments and Protestation seing the suffering the Prisoner to go out was necessary to mendicat his Bread being altogether indigent and that he went once to the burial of a Child of his own and that he continued in Prison and died there February 14. 1671. Bain contra Baillies of Culross Magistrates were not found lyable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health or any other necessary cause as to time past in regard of their common custome so to do but that in time coming they should let none go out except upon great hazard by sickness and upon Testificates upon Oath and when other application could not saâ—ely and timeously be made to the Council or Session Iune 14. 1671. Town of Breichen contra Town of Dundee MANDAT or Warrand of a Servant taking off Furniture from a Marchand for his Master and giving his Recept and bearing that he had received such Furniture in Name of his Master and for his use was found not to oblige the Seâ—vant to pay nor yet to instruct that he had warrand but tâ—e warrand was presumed as known to the Merchant unless it were proven that the Servant did otherwayes imploy the Furnishing than to his Masters use and specially in the case where the Master was dead long ago November 17. 1665. Howâ—eson contra Cockburn Vide Command Vide Wiâ—e February 4. 1665. Paterson contra Pringle IN MAILS AND DVTIES the not calling of the Deâ—enders Master was not â—ound Relevant as in a Removing nor may the Tennents alleadge peremptorly on their Masters Right which is jus tertiâ— but they should have intimate to him to compear for himself and they may yet Suspend on double poynding and call the Party and their Master Iune 10. 1665. Hume contra In the Mails and Duties of a House the damnage sustained by the Tennent by the fall of a Neighbouring house was found to be allowed Ianuary 2. 1667. Hamiltoun contra MAINTAINANCE of August and September 1650. being destinate for the provision of the Army and assigned to these who advanced the provisions they were not found to be excluded by any subsequent quarterings Iuly 27. 1665. Rae contra Heretors of Clackmannan Vide Devastation here singular Successours were not liberate Iuly 28. 1665. Inter eosdem The Maintainance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands was found not to extend to an appearand Heir who brooks by an appryzing which as to him is Redeemable within ten years for what he payed for it here it was not alleaged that the payed sums equivalent to the worth February 8. 1668. Weyms contra Laird of Tâ—lquhon Renewed Ianuary 20. 1669. Inter eosdem The Maintainance 1648. to be upâ—â—fted by Bogie was found not to extend to these who had exemption upon consideration of burning by the King and Parliament 1651 though that Parliament was Rescinded and though all exemptions were excluded by Bogies Commission seing by the Act Rescissory private Rights done by that Authority were excepted Iuly 21. 1668. Weyms contra Campbel of Edenample Maintainance for the year 1648. was found to burden Lands though they were now in the â—ands of singular Successoâ—s who had acquired the time of the Act Iaâ—uary 23. 1669. Weyms contra Frazer of Toâ—lie MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superiour nor held Ward seing he disclaimed not nor by the Superiours Subscâ—ibing Witness in the Vassals Contract of Marriage after the Donatars Gift it was also found that the Marriage might be pursued both Realiter personaliter against the Vassal to pay February 25. 1662. Arbuthnet of Fiddes contra Keith Marriage being decâ—rned by the Commissar to be solemnized upon a Bond granted by a Man to a Woman bearing a Child to be gotten under promise of Marriage and it being alleadged that the Woman had been unchast since which as it would annul so much more hindeâ— the Solemnization of the Marriage and it being alleadged that the Child born after was presumed to be the same man's who got the first and so obliged to solemnize the Marriage The Lords found the presumption held not where there was no formal Marriage and so the Woman behoved to prove the second Child to be this mans Ianuary 31. 1665. Barclay contra Baptie Marriage of an Heir was â—ound due as to the single avail albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage he being Married when his Predecessor was moribundus without previous Treaty or Proclamation the Predecessor dying within some â—ew â—ays and showing no other sufficient cause of the said precipitation but to exclude the Superiour here were adduced the Testimonies of Skeins explications upon Quoniaâ— atachiamenta de maritagio bearing that this was praxis forâ— in his time and expressing three Decisions thereof February 20. 1667. Lord Thesauâ—er and Lord Advocat contra Lord Colvâ—â— Marriage vide Contract Vide Clause December 20. 1664. Young contra Buchannan MELIORATION of a Liferenters House by her was â—ound to oblige the Feear after her death in quantum Itucrâ—s est by
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
subscribed but by one Nottar and by one subscribing Witness there being more Witnesses insert in respect that Marriage followed thereupon Lord Couper contra Lord Pitsligo Iuly 3 1662. THE Lord Couper alleadging That being sitting in Parliament and taking out his Watch to see what hours it was he gave it to my Lord Pitsligo in his hand and that he refuses to restore it therefore craves to be restored and that he may have the Value of it pretio affectionis by his own Oath The Defender alleadged absolvitor because the lybell is not relevant not condescending quo modo the Defender is oblidged to restore for if the Pursuer insist upon his Real Right of the Watch as proprietar the Lybel is not relevant because he subsumes not that the Defender is possessor or haver of the Watch at the time of the Citation or since or at least dolo desijt poisidere or if the Pursuer insist upon a personal obligation he ought to subsume that the Defender borrowed the Watch or â—ook the custody thereof and thereby is Personally oblidged to keep and restore Secondly albeit the Lybel were relevant absolvitor because the Defender offers him to prove that the Pursuer having put his Watch in his hand as he conceives to see what hours it was The Defender according to the Ordinar Civillity they being both sitting in Parliament The Lord Sinclar putting forth his hand for a sight of the Watch The Defender did in the Pursuers presence put it in his hand without the Pursuers opposition or contradiction which must necessarily import his consent and liberat the Defender The Pursuer answered that he did now condescend that he lent his Watch to the Defender and that there was betwixt them Contractus commodati because the Defender having put forth his hand signifying his desire to call for the Watch. The Pursuer put the same in his hand and though there was no words yet this Contract may be celebrat by intervention of any signe of the Parties meaning which here could be no other then that which is Ordinar to lend the Defender the Watch to see what hours it was which importeth the Defenders oblidgment to restore the same To the second Defense non relevat because the Defenders giving of the Watch to the Lord Sinclar was so subit an Act that the Pursuer could not prohibite specially they being sitting in Parliament in the time and therefore in that Case his silence cannot import a Consent The Lords sustained the Lybel and repelled the Defence but would not suffer the price of the Watch to be proven by the Pursuers Oath but pro ut de jure Agnes Peacock contra Mathew Baillie Eodem die AGnes Peacock as Executrix to her Husband having pursued Mathew Baillie for payment of a Sum of Money he offered to prove payment and at the Term produced a Discharge whereupon the Pursuer took Instruments of the Production and offered to improve the same and craved that the Defender might be Ordained to Compear Personally and bide by the same and a Term being Assigned for that effect and the Pursuer Ordained to consigne a Pand in case she secumb in the Improbation and an Act Extracted thereupon The Defender coming from the Country and appearing Personally The Pursuer alleadged the Discharge is null wanting Witnesses The Defender alleadged non Competit in this state of the Process after the exception of Falshood quae est exceptoinum ultima but if the Defender had alleadged the same at the production The Defender would have replyed that it was Holographon and excluded any Improbation The Lords found the Exception of nullitie not competent in this state of the Process Allison Kello contra Paxtoun Eodem die IN a Process betwixt these Parties an exception having been proponed The Lords before answer Ordained the Proponer to produce the Writs with certification that the Defense should be holden as not proponed in termino certificatione being craved an Incident was produced because the Writs were the Proponders Authors Writs and in their hands It was answered that the Incident was not competent there being no litiscontestation It was answered that it was most competent wherever there was a certification as in Acts in Reduction and Improbation The Lords found the meaning of such Acts and Certifications to be only that the Parties should produce their own Writs they would make use of and such of their Authors Writs as they had the time of the Act and that the other Partie might have their Oath thereupon if they pleased and therefore refused the Incident Rentoun of Lambertoun contra Earl of Levin Eodem die LAmbertoun having intented an Improbation of Lands alleadged subscribed by his Father in Favours of the Umquhile Countess of Levin and her Daughters and others and having proceeded to the indirect manner Articles of Probation and Improbation were given in Writ hinc inde and a full Dispute thereupon and all such Witnesses examined as either Partie craved The Lords having Perused and Read the whole Process did upon the Defenders desire allow them to be heard viva voce and both Parties compearing The Pursuer referred the Dispute to the Lords without saying any further And the Defenders having related the Case and Debated in General anent the taking away of Writs by Presumptions and Conjectures and having entred to Repeat all that was in the written Dispute and to answer every alleadgance The Lords declared that it was not their meaning that the Dispute should be repeated but the material and weighty points which the Defender thought of most importance to have been resumed and urged shortly Referring to the rest the Lords Therefore they Ordained the Defenders to order their alleadgences as they might for all that they had to say betwixt ten and twelve the nixt day without any further unlesse the Pursuer answered Thomson contra Mackitrick Eodem die THomson and Mackitrick having Apprysed some Tenements in Drumfriese Mackitrick the first Appryser insists for Mails and Duties Thomson alleadged Mackitrick's Seasin was null as being within Burgh Royal and not given by the Baillies and Town Clerk of the Burgh conform to the Act of Parliament The Pursuer answered that his Seasin was given by the Provost and by a Nottar whom he imployed as Town Clerk not only in that but in several other Acts and that because the Town Clerk was excluded from his Office for not taking of the Tender and upon the same accompt there was no Baillie so that to compleat this Legal Diligence he was necessitat to take Infeftment by the Provost which is sufficient in such Cases because though the Act of Parliament mention the Baillies of the Burgh that it is in opposition to Baillies in that part but cannot be understood in opposition to the Provost who has Majorâ—m Iurisdictionem quia majori inest minus and offers them to prove that he was Provost at least habitus reputatus Provost and that he did imploy his
accordingly It was alleadged he could not have allowance of the sums payed to the Brother and Sister because these could not exclude lawful Creditors It was answered for Mr. William he had payed bona fide a part and had given Bond for the rest and could not now be called in question It was answered he was in mala fide because the payment was made after intenting of the Reduction against his Right at the pursuers Authors Instance Mr. William answered non Relevat unless there had been a Reason Libelled in that Reduction against these Bonds The Pursuer answered it was sufficient that Reduction was used against the whole Right to which any Reason might be added The Lords found this alleadgence not Relevent to put Mr. William in mala fide unless there had been a special Reason of Reduction filled up and shown to Mr. William against these Bonds particularly Margaret Anderson and Iohn Elphingstoun contra Mary Wachop Iuly 22. 1662. MArgaret Anderson and Iohn Elphingstoun as heir to Anderson who were the two Daughters of umquhil Mr. David Anderson of Hills pursues Mary Wachop his Relict and Executrix to fulfil an Article of his Contract of Marriage bearing That if there were no Heirs-male of the Marriage he band and oblieged him and his Heirs-male and Successors whatsomever to pay to the Daughters of the Marriage 3000. merks and craved that the Executrix as representing their Father might pay the same The Defender alleadged Absolvitor because it is clear by the Clausses of the Contract that the Father did not bind himself simply or himself and his Heirs but that he bound only himself and his Heirs-male which is the more clear that the Narrative of that Clause bears because his Estate is provided to his Heirs-male The Pursuer answered he opponed the Clause by which he did not only obliege his Heirs-male but himself and his Heirs-male and so in oblieging himself he hath oblieged all that Represent him and he might have been pursued in his own lifetime if his Daughters had come to the age appointed by the provision 2ly He has not only oblieged himself and his Heirs-male but his Successors whatsomever and therefore his Executors The Lords found that by the Tenor of the Clause and Narrative thereof the Defuncts meaning was chiefly to obliege his Heir-male and albeit Successors whatsomever was added yet by the Narrative and the order of the Words they found the Heir-male was first burdened and behoved first to be discussed Therefore ordained the Defender to condescend what the Heir-male had to succeed to and if he was not Entered Heir-male and had nothing to succeed to as Heir-male they thought the Defender would be lyable William Montgomery contra Theoder Montgomery Eodem die WIlliam Montgomery as Donator to the Escheat of Theoder Montgomeryâ— pursues a general and special Declarator in on Libel and insists first in the general The Defender alleadges Absolvitor because the Horning is null the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile The Pursuer opponed the Horning standing bearing the Defender to dwell in Edinburgh and the Horning could not be taken away by Exception alibi not instantly veryfied The Lords Repelled the Defense but prejudice of Reduction thereupon Secondly Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming because these fell not under single Escheat It was Replyed the Defense ought to be Repelled because the jus mariti falls under single Escheat of the Husband and carrys with it per consequence the Liferent of the Wife The Lords was clear that the Replâ— was Relevant but the Defense not being competent in the general Declarator which was first insisted in they give no Interlocutor on the Reply Lord Frazer contra Phillorth Iuly 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg at the Instance of the Lord Frazer against the Laird of Phillorth It was alleadged for the Defender Absolvitor because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors Ita est Frazer of Doors had no real Right in his Person never having been Seased at least there is Certification granted against Doors Seasin in the Improbation at the Iâ—stance of the Defender against the Pursuer and his Father so that Doors having no reall Right his Disposition Instrument of Resignation and Câ—arter granted by the King flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit who had Right to Pttsligo's Appryzing of the hail Estate of Phillorth can give no Right to declare the Property especially against the Defenders who hath a real Right by Infeftment flowing from Phillorth his Goodsyre by Resignation and flowing from the Lord Lovit which albeit posterior yet having the first Infeftment is the first and only Right The Pursuer answered the Defense ought to be Repelled because any Right the Defender hath is from his own Grand-Father to whom he was alioqui successurus and thereby the Defender is Successor titulo lucrativo to his Grand-father the common Author after the Disposition granted to Doors and as umquhil Phillorth Doors Author personali objectione would be excluded from opposing Doors Right of Property which Right he had Disponed to Doorsâ— and was oblieged to warrand no more can the Defender who by this same Right he Defends being successor Lucrative to his Grand-Father be heard to exclude the Pursuer who is Successor to Doors 2ly Albeit there be no Seasine yet umquhil Phillorth and Lovit were fully denuded in favours of Doors by the Resignation made in the Kings hands and Charter conform after which any Right granted by them to this Defender is a non haâ—ente potestatem 3ly Any Right the Defender hath flowing from the Lord Lovit cannot defend him because it was but an Appryzing against Phillorth the common Author and it is offered to be proven that the Appryzing was satisfied within the Legal in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly to Frazer of Doors for 20000. merks and the Lands of Innerallothy were Disponed by them to Lovits own Sons irredeemable the price of which Lands being 54000. merks was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties and so as to the Lands of Cairnbulg and remnant Lands appryzed the appryzing is extinct The Defender answered to the first that he is not Successor titulo lucrativo to his Goodsyre because the time of the Disposition by his Goodsyre to him and also the time of his Goodsyres death his Father was alive and served Heir to his Goodsyre 2ly There was no Right in his Goodsyre when he Disponed but all the Right was in the Lord Lovit by Pitsâ—igoes Appryzing neither was Lovit denuded by the Resignation or Charter without Seasine so but that the second Resignation with the first Infeftment is preferable 3ly Satisfaction of the Appryzing as it is alleadged is not Relevant unless
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
was alleadged that the Executions of the first Summons were new and by ocular inspection false and craved the Pursuer might abide thereby who refused and so being without an Execution on the first Summons but having an Execution on the second were null The Pursuer craved them to be Transferred instatu quo but prejudice to the Defender in the cause to alleadge no Process because the first Execution was wanting The Lords refused to transfer but some were of opinion that a new Summons in eadem causa would be sufficient to make the Inâ—ibition effectual being raised on the Summons of Registration of a Bond others thought that albeit the Style bear that Inhibitions were not granted but upon fight of the Summons execute yet it was ordinar to give it on an unregistrate Bond or a Charge to enter Heir Execute though there was neither Decreet nor Dependence and therefore though Executions be put on to get these raised yet they are not adhered to but now used so that this Summons though without Execution yet might be transferred and thereon Executions might be used and thereby the Inhibition stands valid which was the more clear way for albeit Summons bear to cite to such a day next to come and so ordinarily cannot be used no citation being thereon within the year yet the Lords special warrand may allow a Summons to be sufficient for citation thereafter as well as they may give other priviledges Janet Shand contra Charles Charters Ianuary 13. 1665. CRichtoun of Castelmain and Crichtoun of St. Leonard granted a Bond to Iohn Shand and Herren his Spouse the longest liver of them two and their Heirs c. With a Clause for Infeftment whereupon there was an Appryzing led in Iohn Shands lifetime against one of the Debitors thereafter Iohn Shand charges the other Debitor for payment after the Charge Iohn Shand gives in the Appryzings to be allowed and after his Death his Wife takes Infeftment upon the Appryzing the Bond being now produced before the Lords in an Exhibition pursued by Ianet Schand as Heir to Iohn Shand. There is a competition for delivery betwixt Ianet Shand as Heir to Iohn Shand as being Heritable and Charles Charters as having right from Herrein Iohn Shands Relict as being moveable It was alleadged by the Heir that the Sum became Heretable by the Superveening of the Appryzing It was answered that there was a Charge after the Appryzing which returned the Bond to be moveable It was answered that the Charge was not against the Partie whose Lands was Appryzed but against the other Party 2ly The Charge could only return the Bond to its first condition before the Appryzing So that the Bond being since 1641. the Relict is excluded and the Charge cannot bring her in 3ly Albeit it could yet after the Charge the Defunct returned to his Heretable Right by obtaining that Appryzing allowed which allowance the Relict produced and took Infeftment so that these last Acts being upon the Real Right the Heir must be preferred and therefore the ground of preference of the Executor or Heir is the will of the Defunct either to make use of his Heretable or Moveable Right which is still ambulatorie and in his power and whatever Right he last makes use of evidences his choise and according thereto the Right is either Heretable or Moveable but here he did last make use of his Real Right by allowance of the Appryzing after the Charge which the Relict homologat by taking Infeftment conform It was answered for the Creditor of the Relict that this being on Debt though due by many Debitors The Charge against one did sufficiently show the purpose of the Defunct to make use of his Right and the Charge doth render the Bond simply moveable and doth not return to the condition it was before the Appryzing To the 3. passing from the Charge must either be express or a Deed of evident consequence but the allowance of the Appryzing is not such which might be done only ad hunc effectum that if the Appryzer should pass from his Charge the Appryzing might revive and be secure The Lords found the Sum Heretable Charles Charters contra a Skipper Eodem die CHarles Charters having fraughted a Ship to Queensburgh by Charter Partie The Skipper was to ly so many lye dayes and to bring a Fraught thence he returned without full Fraught whereupon Charles refuses full payment and being decerned by the Baillies of Leith to pay the rest he Suspends on this Reason that the Skipper ought to get the Fraught only proportionally to the Loading and offers to prove the third part less then the full Loading brought home and that the Skipper could not have his full Fraught unless he instruct that he intimat to the Factor at Queensburgh to whom he was direct of his coming and that he lay his lye dayes and after Intimation to the Factor to give him any Ware he had he took Instrument or protested thereon The Lords found he ought to prove the Intimation ut supra by Witnesses but required no Protest or Instrument thereon Edgar contra Edgar January 17. 1665. ISobel Edgar pursues for 4000 merks provided in her Mothers Contract of Marriage by this Clause whereby her Father having married her Mother to his second Wife oblidged him and the Heirs of the first marriage which failzing his Heirs and Executors to pay to his Bairns of the second Marriage 4000 merks albeit there were but one of them and if there were more the same Sum to be divided among them the Portions of the Male Children to be payed at their age of 21. and the Femal at the age of 18. And to pay them five of each hundreth after his Death till the Terms of payment Ita est the Heirs of the first Marriage failzied by decease and there was four Bairns survived of the second Marriage whereof two died before they attained to their age mentioned in the Clause and now there remains but two the Pursuer and her Brother who is become Heir whereupon she alleadges that she hath the benefit of the whole 4000 merks It was answered for the Brother that he hath right to the half because he is a Bairn of the Marriage as well as she and albeit he be become Heir yet that takes not away his Share by this oblidgment as a Bairn of the second Marriage 2ly Albeit his being Heir would exclude him yet the Portions of the two that are deceased having become Heirs by there survivancy transmit the same to their nearest of kine and so he and the Pursuer are equally nearest of Kin. The Pursuer answered that the Heirs of the first Marriage having failled the Clause stands now as if it had been conceived thus that the Father had oblidged himself and his Heirs which comprehends all Heirsâ— to pay to the Baiâ—ns of the second Marriage which must be understood of Bairns beside the Heir because the Heir is constitute Debitor and so cannot be thought
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary â—but in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâ—â—â— upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
the Liferenter dyed during the Minors Minoritie he might return to the possession in the same way as if the Liferenter were in possession but as for the tollerance now the Liferenter having entered by the Liferent Right and it being reduced in favours of the Pursuer as the Minor could not thereby attain possession so neither can he give tollerance to defend the Liferenter The Lords repelled also this second Defense Patrick Urquhart contra Thomas Blair Eodem die PAtrick Vrquhart having charged Thomas Blair upon a Bond granted by him and William Young as co-principalls Thomas Blair Suspends and alleadges that William Young has payed the whole It was answered that this was not instructed and therefore not receivable being in a Suspension It was answered that though in a Suspension yet a terme is always granted where it is another mans Right It was answered that the Suspender is in hazard of breaking and has not found a good sufficient Cautioner and therefore if he get delay he ought to give better Caution It was answered that he had found Caution who was accepted and he was oblidged to do no more The Lords ordained him to make faith de calumnia upon the Reason but would not put him to find new Caution Robert Scot contra Silvertounhill Eodem die RObert Scot pursuing a Poynding of the Ground for an Annualrent Silvertounhill compeared and alleadged possession by vertue of a prior Annualrent and that the Pursuers Infeftment was base not cled with Possession For proving Possession Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time for himself and in name of the Tenents which had Witnesses But designed not the Writers name and being alleadged to be null for want thereof The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another Johnstoun of Scheens contra Alexander Brown Eodem die JOhnstoun being pursued to remove from certain Lands It was alleadged no Process because all Parties having interest were not called viz. The Defenders wife in respect he possest but by her Right jure mariti and she was not warned Which the Lords found relevant Mr. Thomas Johnstoun contra Mcgregor Iuly 19. 1665. MR. Thomas Iohnstoun having obtained the Gift of Bastardie of one Mcgregor and declared in general insists now in his special Declarator against Patrick Mcgregor for 2000 merks belonging to the Bastard It was alleadged absolvitor because there was a Gift granted in the Usurpers time and declared whereupon the Defender had transacted with the Donatar and satisfied him and obtained his discharge It was answered non relevat because in the Act of Parliament confirming Judicial Precedor under the Usurpers Gifts of Bastardry and all following thereupon are excepted so that the Defender had no Defense in the point of Right and as for his bona fides it only relevant for what was truly payed but not for what was in his hand The Lords repelled the Defense in respect of the Reply Mr. James Winerham conra Lady Idingtoun Iuly 19. 1665. MR. Iames Winerham pursues the Lady Idingtoun personally for Feu-Duties out of certain Lands Liferented by her It was answered non relevat for any years before the Ladies possession because Feu Duties may be Pursued either really by poynding of the Ground or personally against the Intrometters with their profits and because the Feu-duties are as the yearly Rent yet that cannot be extended further than during the years the Possessors intrometted The Pursuer answered that the whole profits being lyable for the whole Feu-duties whether of that or preceeding years the Lady was lyable not only for the years of her possession but for bygones The Lords repelled the alleadgeance and found the Lady lyable personally only for the years of her possession Ryce Gum contra Mckewn Eodem die RYce Gum having obtained Decreet before the Baillies of the Cannongate against Mckewn to repone him to an Assignation he Suspends on this Reason that the Decreet was null wanting Probation proceeding only upon the alleadged judicial confession of the Suspender without proponing any defense acknowledging the Lybel and succumbing in the Defense but simply confessing the Lybel which cannot prove against him being under the hand of an Clerk of an Inferiour Court only without the Suspenders subscription or oath Which the Lords found relevant Mr. Robert Dickson contra Mr. Mark Ker. Iuly 21 1665. THere being a competition betwixt Mr. Robert Dickson and Mr. Mark Ker as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day Mr. Robert Dickson had past in Exchequer long before and his Summons was raised two dayes before his Gift was Sealed and so was not a Regular Diligence He alleadges Mr. Mark Kers was more irregular because being a Declarator his Summons was not upon 21. days It was answered the Summons was priviledged It was Replyed that the priviledge was granted periculo petentis upon a common Bill which passes without observation The Lords considering that their Gifts were both past in one day and that there diligence was so near conjoyned the Gift and declared them joyntly Spreul contra Miller Eodem die BArbara Miller having left two Legaces and named William Wilson her Executor and universal Legatar he nominats his Wife and one Giffin his Executors Spreul having right to the two Legacies pursues the Relict and Executors of Wilson who was Executor to Barbara Miller for payment of the Legacies He alleadges absolvitor because the first Testament was not Execute 2ly The special Legacies must be abated proportionally with the general Legacies The Lords repelled both the Defenses and found the general Legacie not to come in pari passu with the special and found that the Executor of the Executor was lyable unless he could alleadge that the first Executor had done diligence and had not recovered or was exhausted Laird of Ludquharn contra Laird of Gight Iuly 21. 1665. THe Laird of Gight having Married Ludquharns Daughter who remained in her Fathers Family and brought forth a Bairn to Gight and dyed Ludquharn the Childs Guid-sir keeped her in his Family several years and now pursues Gight for her Aliment who alleadged absovitor because the Pursuer never having required a promise of this Aliment nor desired the Defender to take home his Daughter It must be presumed that the Pursuer did it animo donandi for his own Oye The Lords found this Defense relevant for all years preceeding the intenting of this Cause Thomas Rew contra Viscount of Stormont Iuly 22. 1665. THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont who alleadged no Process because the Citation was not within year and day of the Summons the warrant thereof which bears to cite the Defenders to compear the day of next to come The Lords found the Defense relevant Johnstoun contra Tennents of Achincorse
her Spouse Ianuary 2. 1666. 〈…〉 pursues a Reduction ex capite Inhibitionis against Iean Wilson and Lodwick Callender her Spouse of all Dispsitions of certain Tenements of Leith made by the Common Author since the Inhibition It was alleadged for the Defenders absolvitor from this Reduction because the Defenders produced an Appryzing led against the common Author before the Inhibition and which is sufficient to maintain the Defenders Right of the Lands in question and to exclude all Rights and Interest the Pursuers can have thereto It was adswered non relevat seing the Pursuer is not insisting in a Reduction of all Right competent to the Defenders upon general Reasons either bearing expresly or by equivalence that the Pursuer had good Right and the Defender had no Right but the Pertner is insisting specially upon particular Rights called for and upon a special Reason viz. That they were after the Pursuers Inhibition so that albeit the Defender have another better Right than the Pursuer it will not be prejudged by this Reduction nor can it hinder the conclusion of this Summonds viz. That the Dispositions are null as being post Inhibitionem It was answered for the Defender that his Defense is relevant for he alleadging and producing a sufficient Right to the Lands whereof the Dispositions are called for to be Reduced it takes away all Interest in the Pursuer to these Lands and therefore he may justly thereupon exclude the Pursuer from troubling the Defender in this or any other Reduction which can have no effect It was answered that if this ground were layed no Reduction could be sustained of any particular Right called for to be reduced unless the Pursuer did reduce all Rights that the Defender could produce which is neither just nor conform to the Custom because Pursuers may have necessity to reduce some Rights in respect of the probation which may be lost as either Oaths of Parties or Witnesses and yet may not be in readiness to insist against all the Defenders Rights not having found out theirs or their Authors progress but the Lords may reserve the other Rights seing their is no possession or other effect craved but only Declaratoria juris The Lords in respect the Defenders were very poor and their case favourable Ordained the Pursuer to insist upon what he had to alleadge against the Defenders Appryzing produced as if it had been contained in the Reduction but it is not to be layed as a general Ground that in no case Reduction may proceed albeit it exclude not all the Rights produced in the Defenders person especially if any singularity as to the probation appeare George Graham and Jack contra Mr. Andrew Brian Ianuary 3. 1666. GEorge Grahame as Assigney by Iack having charged Mr. Andrew Brian he Suspends and raises Improbation wherein he insists and craves that the Assigney may abide by the Bond the Assigney declared that he would abide by it as being delivered to him as a reall true don Deed without any knowledge of his in the contrare and offered to produce the Cedent to abide by it who compearing It was alleadged that he was a Bankrupt and had a Bonorum and therefore behoved to find Caution to appear at all the Dyets of Process or to enter in Prison till the Cause were Discust or at least that the Assigney would be oblidged to produce him The Lords having considered the Case found that the◠Assigney was oblidged no further then what was offered and they found the Cedent not oblidged to find Caution or enter in Prison but that he should Enact himself to compear Iudicially whensoever any Point of the Improbation were referred to his Oath which might infer the falshood of the Writ if confest and that if in that Case he compeared not the Bond should be improven not only to him but as to the Assigney inferring no hazard to the Assigney as to the Criminal part if he were not found accessory David and Andrew Fairfouls contra Mr. James Binni Ianuary 4. 1666. THE Bairns of the Umquhil Bishop of Glasgow having charged Mr. Iames Binni to pay a 1000 merks he Suspends and alleadges that they were Minors not sufficiently Authorized in so far as they did choose Mr. Iohn Harper and Achmoutie and their Mother to be their Curators or any two of them their Mother alwayes being one so that their Mother being Dead who was sine qua non there behoved to be a new Election It was answered that the Pupils were willing to compear and acknowledge thir Curators as their Curators which is sufficient to Authorize Which the Lords found relevant Laird◠of Milton contra Lady Milton Eodem die THE Laird of Milton pursuing a Reduction of a Decreet of Divorce pronounced by the Commissaries of Edinburgh at the instance of the Lady Milton his Step-mother against Calderwood her last Husband upon Adulterie desired that the Testimonies of the Witnesses might be made privat to him being a matter of so great Importance as tending to take away the Right of the Ladies Jointure disponed be her Husband to this Milton The Lords refused the desire but Ordained the Clerks to give a Note expressing the names Designations and the preambulatory questions in the Depositions as their age married or Not purged of partial Council c. Lady Bute and her Husband contra Sheriff of Bute Ianuary 5. 1666. THE Ladie Bute and her Husband pursue a Reduction of a Right of a part of her Conjunct-fee made in favours of her Son upon this Ground that it was done after her Contract of Marriage with her present Husband and publick Proclamation in the Kirk thereupon It was answered First That once Proclamation was not sufficient 2dly That it was offered to be proven that the Husband knew that the Right was granted and yet he proceeded in the Proclamation and Marriage which behoved to proport his acquiescence and consent and alleadged likewise the Case was most favourable because the Lady had married unsuitably her Husbands Chapland It was answered for the Pursuer that once Proclamation is sufficient as has been several times found and that there is no weight to be layed upon her Husbands knowledge who knew he had a remeed competent in Law whereby the Deed done by his Wife after the Contract and Proclamation would be null and so his going on in the Marriage did not infer his acquiescence or Homolagation And as for the favour of the cause it is much more on the Pursuers part who being provided by her Husband to 27 Chalders of Victuall had before the Contract of Marriage quite 20 to her Son and of the seven remaining he had urged her to quite 100 lib. And 7 bolls of Victual were only now in question The Lords found the Reason of Reduction relevant and repelled the Defense upon the Husbands knowledge for they thought that as Deeds of a Wife cled with a Husband without his consent are null after the Solemnization of the Marriage
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
not obliged to disput the validity of this Right because he hath been Infeft quaâ—â—ter qunque and by vertue of his Infeftment hath been seven years in Possessiâ—n whereby he hath the benefit of a possessory Judgement â—ay and while his Infeftment be Reduced The Lords found that even by the Contract of Marriage the Husband was Fiar and not the Wife But that the Wifes Heirs of line were Heirs of Provision to the Husband and that if there had been an heir of the Maâ—riage or an â—â—ir of the Mans Body they could never have been served â—eirs to the Wife and that by the deficiency thereof the condition of the Fee cannot change and therefore they found that Cranstoun was wrong iâ—feft yet they found the alleadgence of his seven years Possession Relevant to give him the bâ—nâ—fit of a possessory judgâ—ment without Disputing whether the Provision of the Contract of Marriage in favours of the wife was derogat by the posterior Infeftment omitting her heirs Andrew Litlejohn contra Dutches of Monmouth Eodem die ANdrew Litlejohn pursues the Dutches of Monmouth and her Curators for payment of a Taylor accompt taken off by the Dutches for her Marriage Sow to the fit whereof she adjoyns these words I acknowledge the Accompt above-written and subscrives the same It was alleadged by the Curators that the Countess Subscription being after her Marriage can neither oblige her self nor her Husband because Wives Obligations are ipso jure null It was answered that the Dutches being persona illustris and the accompt for Furniture to her Body at her Marriage her accompt fell not under the Nullity of Ordinary Obligations by Wives whose Bonds are null not so much because their Subscriptions prove not the Receipt of the Money as because being in potestate viri they cannot imploy it profitably for their own use which ceases here the accompt being for necessar Furnishing which both obliges the Wife and her Husband who is obliged to Entertain his Wife The Lords Decerned the Pursuer always making Faith that it was a just and true accompt truely Resting and owing and would not put the Pursuer to instruct the delivery by witnesses who are at London considering especially that the Dutches being such an illustrious Person her Subscription could not be questioned upon so small a Matter as obtained without delivery Helen Iohnstoun contra Robert Johnstoun Eodem die HElen Iohnstoun alleadging that there was a Blank-bond in her Brother Roberts hand to her use and that he promised to apply the benefit thereof to her doth pursue the brother either to deliver the Bond or otherwise the sums therein and offers her to prove by the Debitors Oath that the Bond was blank in the Creditors Name when it was Subscribed by him and by Witnesses above Exception that it was blank when she delivered it to the Defender and craved the Defenders Oath of Calumny concerning the promise The Defender alleadged that he was not obliged to give his Oath of Calumny upon one Point of the Lybel but upon the whole The Lords found that he was obliged to give his Oath upon one point of the Lybel But they found that VVitnesses were not Receiveable to prove the Bond to have been Blank to infer Redelivery of the Bond or Sums And found likewise that sâ—ing the whole Lybel was only probable by his Oath he was not oblieged to give his Oath of Calumny but only his Oath of Verity seing he might be ensnared by denying upon his Oath of Calumny which was lubrick and of dâ—bious â—nterpretation what it imported and so might be prompted to wrong himself in his Oath of verity least it should clash with his Oath of Calumny vid. 21. Feb. 1667. inter eosdem Lord Thesaurer and Lord Advocat contra Lord Colvil Eodem die THe Lord Thesaurer and Lord Advocat pursue the Lord Colvil for the single avail of his Marriage in so far as he was Married when his Predecessor was on Death-bed and was moribundus and was Married without proclamation within seven or eight dayes before his Predecessors Death which precipitation of his Marriage did manifestly pâ—esume that it was of fraud to seclude the King from the benefite of the Marriage and so it was in the same case as if he had been Married after his Predecessors death and repeated the opinion of Sir Iohn Skeen in his Explicatiâ—ns upon Quoniam Atachiamenta se Maritagio bearing that it was praxis fori that if the Vassal gâ—ve his Heir in Marriage upon Death-bed it was estâ—emed a fraudâ—â—ent precipitation in prejudice of the Superior and gave the Superior the single avail of the Marriage and sets down three Decisions whereby it was so found It was answered for the Defender Absolvitor because there is neither Law nor Custome gives the Superior the avail of the Vassals Marriage if he be Married before his Predecessors Death but Craig and other Lawyers do define this casualty to be the avail of the appearand Heir of the Vassals Marriage Marrying after his Predecessors Death and as to the ground insinuat of fraud by precipitation it is no wayes relevant First Because albeit it did appear that the Defunct Vassal had Married his Heir of design to prevent the Marriage yet here is no fraud but a warrantable Providence which is not dolus malus sed doâ—us bonus for fraud is never understood but when it is contra jus delatum and not of the preveening of jus deferendum for thereby only the Right and Interest of another is taken away as for example any Heretor may dam or divert the water upon his ground as he pleases and cannot be hindred upon pretence that his Neighbour might thereafter make use of that water for a Miln to be built and yet if the Miln were built he could not thereafter alter the course of the water so here the Superior having no present Right but in spe the Vassal endeavouring to prevent the casualty commits neither fraud nor fault otherwise upon pretence of fraud a Marriage might be claimed when the Predecessors resign in favours of his appearand Heir or suffers his Land to be Appryzed in name or to the behove of the appearand Heir which yet was never challenged neither hath a Marriage been obtained or demanded upon this ground by the space of these threescore years 2ly Albeit prevention could be fraud yet here is nothing alledged to infer fraud which is never presumed unless it be evidently proven and when any other Cause is possible the Effect is never attribute to a fraudulent Cause But here there is a most probable Cause viz. That the Defunct desired to see his Successor Married to his satisfaction it being very ordinar that the ruine of Families arises either through the not Marrying or Marrying unfitly of the Heir And as for the presumptions of fraud here they are neither evident nor pregnant As to the Decisions no respect to them first Because they are threeâ—core years in desuetude 2ly There
same Ground the rest of the Witnesses proved that the Pursuers were in possession at or about the time Lybelled and that they went to Edinburgh and Locked their Doors and took away the Keys and some of them Deponed that the night before the Defenders Entry they saw the Doors Locked and that the next day after they saw Hugh Colvil and several others in the House and several Goods that were in the House cast out of the Door and that Hugh continued in Possession and took in the Goods again Which the Lords found sufficient to prove the Ejection and Spuilzie seing the Defender did not instruct that he entered by Authority of Law The Defender alleadged at Advising the Cause that the Pursuer had a Husband who within this Moneth was seen at Air and offered to prove by his Oath that he had Ceded the Possession being Warned and gave Warrand to the Defender to Enter and therefore he being Dominus bonorum his Wife and Bairns had no Interest to pursue and though they had his Oath was sufficient to instruct the Lawfulness of the Defenders Possession and that the Wifes Oath in litem could not be taken to Esteem her Husbands Goods It was answered that it was notourly known that the Husband had been two years out of the Countrey and having gone to Sea was commonly repute dead and therefore the Wife being in Natural Possession might lawfully pursue this Action neither was it relevant that the Husband promised to quite the Possession which being but an obligation could not warrand the Defender brevi manu to cast them out unless he had been present or consented to the Entry or had given a Renunciation of his Possession with a Warrand to Enter brevi manu The Lords in respect both Parties acknowledged that the Husband had been a great while absent found the Action competent to the Wife and found that the Husbands Ceding the Possession as was alleadged was not relevant and ordained the Wifes Oath as to the quantity and value of the Goods Spuilzied to be taken and granted diligence to the Defender to Cite the Husband if they could find him to the same Dyet to give his Oath reserving to the Lords what the Wifes Oath could work as to the estimation of the Goods without the Husbands Oath White-head of Park contra Iohn Stratoun Eodem die WHite-head of Park pursues Iohn Stratoun for restitution of an Horse which he delivered to his servant to be put in the Park of Holy-roadhouse to the Grass and which now cannot be found The Defender alleadged that he was lyable for no Loss or Hazard because at that time and long before there was a placad fixed upon the Port of the Park that he would be answerable for no Hazard or Loss of any Horse put in there by Stealling or otherwise which was commonly known at and long before that time It was answered that this Action being founded upon the common ground of Law nautae caupones stabularij ut quae receperint restituunt the same cannot be taken away but by paction and the putting up of a placad is no wayes sufficient nor was it ever shown to the pursuer The Defender answered that the Pursuer having only delivered his Horse to his Servant to be put in the Park without any express communing or conditions it behoved to be understood on such Terms as was usual with others which were the Terms exprest in the placad Which the Lords found relevant unlesse there had been a special agreement in which case they found the Defender or his Servant should have showen what was in the placad Executors of Isobel Trotter contra Trotter November 20. 1667. GEorge Trotter and Iames Lundy his Cautioner having granted a Bond of 636. pounds to Iohn Trotter and the same being Assigned to Isobel Trotter and Confirmed by her Executors they pursue Lundy who alleadged Absovitor because he offered him to prove that the Bond was granted blank in the Creditors Name to Iames Trotter Father to the said Isobel who filled up the Name of Iohn Trotter his Brother therein and took an Assignation thereto in Favours of Isobel who was then in his Family having no Means of her own and therefore it is in the same case as if it were a Bond of provision granted by the Father to the Daughter or taken in her Name which may alwayes be discharged by the Father or altered by the Father at his pleasure and true it is that the Father Submitted the same and was Decerned to Discharge the same which is equivalent to a Discharge It was replyed albeit Bonds of provision to Children be alterable by their Fathers before any thing follow yet if they be delivered to the Children or which is more if they be Registrate they become the Childrens proper Right and cannot be recalled Ita est this Bond though it had been blank ab origine it was filled up in Iohn Trotters Name and filled up before the Submission yea Isobel was dead and the Sum confirmed in her Testament so that her Father could not Discharge it proprio nomine or as his Administrator It occurred further to the Lords that albeit the Bond was Registrat the Assignation granted to the Daughter was not Registrat so that if that Assignation remained still in the Fathers power the case would be alike as if it were a Bond of provision taken originally in the Daughters Name yet this not being pleaded by the Parties And that the Asignation was Intimat that it was not constant that the Assignation remained in the Fathers hands The Lords repelled the Defense in respect of the reply Colonel Seatoun contra the Laird of Balwhilly November 22. 1667. THe Laird of Balwhilly having seased upon a Ship belonging to the Dutch during the War Colonel Seatoun Governour of the Fort at Brassie sound medled with the Ship and Loadning brevi manu for the use of the Garison Balwhilly pursues a Spuilzie before the Admiral Colonel Seatoun gives in a Bill of Advocation on this Reason that Balwhilly having no Commission albeit he did sease upon the Ship yet it belongs to the King and the Colonel had a Warrand from the Lord Commissioner to Intromet therewith for the Garisons use and therefore in the Cause concerning the King His Majesties Advocat and Officers were not obliged to answer before the Admiral nor could they attend there and therefore the Advocation ought to be past It was answered that the Reason was in causa and not relevant for the Advocat ought to have a Depute before the Admiral which is a Supream Court and Process maritime in the first instance ought not to be Sustained before the Lords and that whatever they pretended in the poynt of right Spoliatus est ante omnia restituendus The Lords having heard the Parties upon the Bill in presentia ordained the same to be past It was then desired that as before the Admiral the Colonel behoved to find caution not only judicio
a time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses
The Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and
proportional to the remainant Lands lying in that Shire so that where the other Lands are generally highly Retoured it is evidently presumed that the Property was so Retoured and seing the Property did of old pay no Taxation it were strange now to make it bear more then the other Temporal Lands about it The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires Earl of Marishal contra Leith of Whitehaugh Eodem die IEan Keith having a Right to a Wodset of the Mains and Miln of Troup and being Married to Iohn Forbes she Disponed the Heretable Right to his Brother which Right is now by progress in the Person of Leith of Whitehaugh Isobebs Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husbands Brother and now his Right and an Assignation to the said Process coming to the Earl of Marishal and by him to Lesmore they insist in their Reduction upon the Reason of Minority and Lesion It was alleadged for the Defender First No Process because prescription is past since the Right was granted by Isobel Keith which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new so that it signifies no more nor blank Paper or a blank Summonds till the Reasons be filled up and insisted in before which prescription was compleat 2dly Absolvitor because the Right granted by Isobel Keith to her Husbands Brother was to the Husbands behove Likeas there was a blank Bond granted by the Brother to the Husband so declaring and there being no other Contract of Marriage this Disposition must be understood as granted to the Husband in contemplation of the Marriage and being but the Right of 10000. Merks which was but a competent Tocher it was no Lesion to Dispone the same to the Husband or any to his behove and offered to prove by the Brothers Oath that there was such a back Bond and that yet there is a back Bond by him to whom the Brother Disponed The Pursuer answered to the first that interruption is sufficient by any Act whereby the Party having Right may follow the same so that Summonds albeit not legally Execute would yet make an interruption though no Sentence could follow thereupon and a Summonds being blank must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein but here the Lybelling of the Interest which is not with new Ink bears expresly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice which doth imply the Reason of Minority and Lesion To the second albeit the Disposition by the Wife had been to the Husband yet it is simply Reduceable upon Minority there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure in which case if the Provision had been suitable there would have been no Lesion and if not suitable the Lords might Reduce it in part or Rectifie it if done in the Wifes Life but here she having nothing from the Husband and being Dead she cannot now receive a Jointure and so the Right is Reduceable in totum especially seing the said Iohn Forbes did violently carry away the said Isobel Keith and Married her without her Friends Consents and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her 2dly There is not nor cannot be known any such back Bond and it were absurd that the Husbands Brothers Oath alone should prove the same in favours of his Brother The Defender answered that albeit there was no Jointure provided yet the Law provides a Terce which ofttimes is better nor the Jointure The Pursuer likewise answered that the Law did provide the jus mariti and the courtesie so that either Party ought either to acquiesce in the provision of Law or the Provision of Parties must be mutual The Lords Repelled the first Defense especially in respect of the manner of Libelling the Title and found not the Executions of the first Summonds to appear new and therefore Sustained them unless the Defender would improve the same they found also that alleadgeance that the Disposition was to the Husbands behove was not to be Sustained especially seing no back Bonds were produced or offered to be proven and that the manner of Probation offered was no way sufficient that there was no Provision for the Wife Duke Hamiltoun contra the Laird of Blackwood Eodem die THe Duke of Hamiltoun pursues the Laird of Blackwood that it may be declared that he is his Vassal in his Lands of Blackwood on this ground that the late Marquess of Hamiltoun having Disponed to the King the Abbacie of Arbroth did in consideration thereof in Anno 1636. get a Charter from the King of the Barony of Leshmahago a part of the Abbacie of Kelso of which the Lands of Blackwood were holden Waird which Lands having been Apprized and the Apprizers Infeft holden of the King the Laird of Blackwood having thereafter Disponed them to Major Ballantine by his Contract of Marriage with Blackwoods Daughter and the Major having purchased a Right from the Apprizers both upon Blackwoods procuratory of Resignation and the Apprizers he Resigned the Lands in the Marquess Hand and did take his Infeftment holding Waird of him likeas this Blackwood who is Heir of Provision to the Major as procreat by Marion Weir Blackwoods Daughter with William Lowry hath no other Right but as Heir of Provision to the Major and yet he hath taken Infeftment holding of the King likeas the said William Lowry his Father as lawful Administrator and taking burden for him has obliged himself by his Bond that so soon as the Marquess should obtain a Right to the Superiority he should take his Infeftment from him Waird and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expresly provided that any Right to the Superiority of Kirk Lands granted by the King yet notwithstanding the annexation shall be valide as to such Vassals who have or shall consent to the Rights of the Persons obtainers of the saids Superiorities so that Major Ballantine having consented by taking Infeftment in manner foresaid he and his Successors must continue the Dukes Vassals The Defender alleadged Absolvitor because any Right the Duke has or the Marquesse had to the Superiority is absolutely null by the saids Acts of Parliaments annexing the Superiority of Kirk Lands to the Crown so that unless there had been a Dissolution in Parliament no Right of these Superiorities is valide but null and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority Ita est there can be no Right but
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants
Cross of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâ—st 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ— without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pâ—rocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
Justice Clerk her Brother who alleadged upon the foresaid Clause that the effect thereof must necessarly be that the said Helen should make no voluntare gratuitous Right in prejudice of her Father or his Heirs that the Sum should return if she were not Married It was answered that this Clause not being the ordinar Clause of Substitution Provision or Return cannot be understood a Suspensive Clause hindring the lifting of the Money neither yet a resolutive Clause in case the Pursuer Marry not but it can only have the effect of a Clause of Substitution that if the Pursuer died Un-married and the Sum un-uplifted or Disponed her Fathers Heir is preferred to her own Heir or nearest of Kin for the Term of payment being her age of ten years she might then lift the Sum and there is no provision to reimploy it of this Tenor or to find Caution to Restore if she were not Married It was answered that this Clause cannot be interpreted as a naked Substitution but as a condition of the Bond equivalent to that which is frequent in Provisions of Children and Contracts of Marriage that in case the Party had no Children the sum should return which was always interpret more than a single Substitution and to import a Condition or Obligation against any voluntar Deed or Disposition And though the Party be thereby Feear of the Sum yet it imports a limited Fee with a Provision to do no Deed in the contrair without a Cause onerous and albeit Re-imployment of the sum be not exprest in this Bond it is implyed in the nature of it The Lords found that seing the Bond had a particular Term and no Condition to Re-imploy and the question now was only of voluntar Dispositions without Causes onerous whereof there was none at present existent The Lords Decerned the Sum to be payed to the Pursuer reserving to the Defender his Reason of preference against any Disposition or Assignation without a Cause onerous if the same should happen to be made Iohn Mccrae contra Lord Mcdonald Iuly 6. 1671. JOhn Mccrae as Heir to John Mccrae his Goodsire pursues the Lord Mcdonald as Heir to his Goodsire for payment of a Bond of 400. merks in Anno 1629. granted by the Defenders Goodsire to the Pursuers Goodsire The Defender alleadged absolvitor because the Bond is prescribed The Pursuer replyed that the Prescription was impeded partly by Minority and was interrupted by a Citation at his Instance against the Lord Mcdonald It was answered that the first Citation made was null being at the Mercat Cross of the Shire by Dispensation upon an unwarrantable suggestion that there was not safe access to him which has been past of Course by the Servants of the Bill-Chamber whereas they ought specially to have represented the same and the consideration thereof to the Lords and so being surreptitiously obtained periculo petentis it can import no interruption 2dly The Execution at the Mercat Cross bears no leaving or affixing of a Copy And as for the second Citation it is but one day before the fourty years be compleat which being so small a time is not to be regarded in Prescription nam Lex non spectat minima and it is also null though it be done personally as falling with the first Execution The Lords found that the first Citation was sufficient to interrupt Prescription although it had not been formal through want of a Copy and declared they would sustain the Process thereupon if the leaving of a Copy were added to the Execution subscribed by the Messenger and abidden by as true They found also that the second Citation was sufficient interruption though within a day of compleating the prescription which was to be reckoned punctually de momento in momentum Strachan contra Gordouns Iuly 7. 1671. STrachan pursues Gordouns for a Spuilzie of four Oxen taken away from them by violence being then in their Plough by George and William Gordouns and others The Defenders alleadged absolvitor because they offered them to prove that the Oxon were their proper Goods and were stollen from them and that thereafter they were found straying upon the Pursuers Ground and that they were proclaimed as Waith-goods by the Sheriff and that by the Sheriffs Order direct to his Majors the Defenders intrometted with them and so did no wrong The Pursuer Replyed that no way granting the verity of the Defense the same ought to be Repelled because they having the Oxen in question in their peaceable Possession four Months they ought not to have been disturbed in their Peaceable Possession in this Order without the Citation or Sentence of a Judge So that the Defenders having unwarrantably and violently Dispossessed them spoliatus ante omnia restituendus and they may pursue for Restitution as accords but the Pursuers are not now obliged to Dispute the Point of Right 2dly If need beis they offer to prove that they acquired the Goods from the Laird of Glenkindy their Master so that being Possessors bona fide cum titulo they could not be summarly Spuilzied or Dispossessed For albeit stollen or strayed Goods may be summarly Recovered de recenti or from the Thieves yet cannot so be taken from a lawful Possessor acquiring bona fide The Lords found the Defense Relevant and admitted the same to the Defenders Probation and found also that part of the Reply Relevant that the Pursuers did Possess bona fide by an onerous Title Relevant to elide the Defense though it were proven as to the Restitution of the Oxen to the Pursuer and the ordinar profits thereof but not the violent profits for they found the Sheriffs Warrand being instructed would excuse from the violent profits but they found that the Defenders naked Possession though for four months by having the Goods in the Plough would not infer Restitution or Spuilzie but that the Goods being stollen or strayed might be recovered Summarly Laird of Polmais contra The Tradsmen of Striveling Eodem die THe Tradsmen of Striveling having Charged and troubled the Laird of Polmais Tennents about St. Ninians Kirk upon the Act of Parliament prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows Polmais raised a Declarator for freeing of himself and his Tennents of the saids Charges and that they might freely exercise all their Trades especially about the Kirk of St. Ninians which is about a Mile from Striveling which being Dispute and it condescended upon that St. Ninians being a mile from Striveling could no ways fall under the Act of Parliament and could not be interpret a Suburb being no ways adjacent to the Town The Lords found the Declarator and Condescendence Relevant and Decerned Andrew and Adam Stevins contra Cornelius Neilson Iuly 11. 1671. ANdrew Stevin having made a Disposition of his Lands to Cornelius Neilson his Good-brother and thereafter another Disposition to his Brother Adam Stevin They pursue a Reduction of Cornelius Disposition First As being upon Trust and only for the security
exclude Reductions and Declarators against appearand Heirs not requiring a Charge to Enter Heir in respect the appearand Heir must therein except upon the Defuncts Rights and so behave as Heir Iune 27 1667. Dewar contra Paterson Annus deliberandi Excludeth Citations given within that year here the day of compearance was within the year Ibidem ANNVALRENT was not found due for sums of Money without paction albeit the Money was lent with this provision that failing Heirs of the Creditors body who was very old the Debitor should succeed December 11. 1662. Logiâ— contra Logiâ— Annualrent was found due after Horning albeit the Decreet being Susâ—ended a part of it was taken away yet Annual was found due for the rest Ianuary 30. 1663. Rigg of Carberry contra his Creditors Annualrent was allowed without paction for a Portâ—on left by Legacy to the Defuncts natural Daughter the time of payment of which Legacy was her Marriage which being in her power The Lords would give no occasion to hasten the same but allowed Annualrent in the mean time Iune 25. 1664. Inglis contra Inglis Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mothers Father and uplifted by the Father during the time he alimented his Son in his Family December 15. 1668. Windrham contra Eleis Annualrent promised for a time by a Letter was found due in all time thereafter Ianuary 13. 1669. Hume contra Seaton of Menzies Annual of Annual was not found due though expresly obliged to be payed by a Bond beaâ—ing That after each Term the Annualrent if it were not payed should bear Annualrent with the principal which clause was found null and not in the same case with a Bond of Corroboration granted after Annualrents were due accumulating the same Ianuary 26. 1669. Lady Braid contra Eâ—rl of Kingâ—orn APPRYZINGS were found not to be affected by a Bond or a Contract amongst the Appyzers to concur and communicat their Rights as to singular Successors seing the Contracters were then Infeft Iuly 1661. Taâ—lziâ—er contra Maxtoun An Apprizing led before the year 165â— but no Infeftment thereon till after that year was found not to come in pari passu with posterior Apprizings Infeft or Charging after the Charge or Infeftment on the Appryzing before 1652. but it did exclude them wholly December 12. 1666. Sir Henry Hume contra Creditors of Kello An Apprizer was found Comptable â—or his Intromission with such as he Entered in Possession of according to the Rental the Lands gave at his Entry with power to him to give up all defalcations in his Discharge and instruct the same Ianuary 4. 1662. Seaton contra Rosewall An Apprizer was excluded by a prior Infeftment though granted to the Creditors appearand Heir whereby he became Lucrative Successor after this Debt contracted but prejudice to purâ—ue him personally or to Reduce on that Title Ianuary 6. 1662. Mansoun contra Bannerman of Elsick An Apprizer pursuing for Removing and Mails and Duties his pursuit was Sustained only as â—o so much of the Apprized Lands as he should choose worth 8. per cent and to compt for the superplus more than his Annualrent and publict burdens excepting the Defenders House and Mains by the late Act of Parliament betwixt Debitor and Creditor Iune 27. 1662. Wilson contra Murray Apprizers Competing upon the late Act of Parliament bringing in Apprizings since 1652. pari passu was found not to exclude Apprizings before having obtained Infeftment since but that none could come in with him who was first Infeft and payed the Composition till they refounded their shares thereof Ianuary 24. 1663. Graham contra Ross. But also by the Tenor of the late Act the first Apprizers being Infeft in an Annualrent were found to have access to his Annualrent thogh there was no poinding of the ground February 5. 1663. Inter â—osdem An Apprizer was found comptable for the Rents of the apprized Lands during the Debiâ—ors Minority contrary the Act of Parliament 1621. Which was â—mended in the late Act 1641. But in the late Act Rescâ—ssory that was not Revived seing all private Rights by these Rescinded Acts. mâ—dio tempore were Reserved and this had been the Custom for twenty years February 18. 1663. Rosse contra Mckenzie Apprizers Competing the first Apprizer having given the first Charge on the Letters of â—our Forms and before the dayes thereof were expired the Superiour Infefting a second Apprizer the Infeftment was found Collusive and the first Apprizer giving the â—irst Charge and Infeft within a litle time after the second was preferred and the first Infeftment Reduced was still in Possession till now that the Legal was expired not only the bygone Fruits were his own but that he might Redeem within a year after this Sentence seing by the Taciâ—urnity of the Pursuer he was in bona fide to continue his Possession and not to doubt his own Right or Redeem a second Apprizer December 3. 1664. Laird of Clâ—rkingtoun contra Laird of Corsbie An Apprizing within a year was excluded from coming in pari passu with a prior Apprizing in respect the prior Apprizer had before the Act betwixt Debitor and Creditor taken Right to a prior Apprizing without necessity to alleadge that he took the Right to shun the expiring of the Legal of that prior Apprizing or any other necessary Causâ— December 9. 1664. Iohn Veatch younger of Dawick contra Alexander Williamson Apprizers Competing where the first Apprizer being Infeft would possess but a part the Debate being as to the rest betwixt the second Apprizer not Infeâ—t and the third Infeft the Lords preferred the second as needing no Infeftment December 22. 1664. Doctor Ramsay and Hay contra Seatoun Apprizers come in pari passu not before the date of the late Act but from that time both Parties Sums should be accumulate and the Mails liâ—ted proportâ—onally but prâ—ceeding Mails should be imputed in payment of the Expence of the Apprizing Composition to the Superiour and then in payment of the principal Sums Ianuary 7. 1665. Grahame of Blackwood contra Browâ—s An Appriâ—ing being to be led the present Hâ—ritor and Possessors obtained assessors to be joyned to the Messenger that he might stop the Apprizing by production of his Inâ—eâ—tment â—ebruary 3. 1665. Sir Iohn Fletcher Supplicant An Apprizing ordained to be allowed and Registrat after the Debitors death and long after the sixty dayes were past from the Date of the Apprizing and that upon Supplication without Citation in respect it was found that the Apprizing Registrate Quandocuâ—que would be preferred to others not sooner or more orderly Registrate Iune â— 1665. An Apprizer pursuing for Mails and Duties was excluded till he â—atisfied the Superiour for a years Rent he being now ready to Recâ—ive him albeit he â—as Charged before and did not obey Iuly 22. 1665. Iohnstoun contra Tennents of Auchincorse An Apprizing being lost and a new Extract thereof being Subâ—cribed by the Clerk of
infeftment in liferent was sustained by her Seasine adminiculat by her Contract of Marriage albeit the sealine was not immediaâ—ly on the Contract but related a bond granted for the same cause which was not produced Iâ—ne 29. 1665. Norvel contra Steuart A wiâ—e was â—ound not to be excluded from her liferent because her Toâ—lier was not payed she not being obliged therefore albeit the Contract bear that the Tocher being payed it should be so applyed upon security Iuly 5. 1665. Mackâ—â— contra Steuart A wife was not found lyable to her husbands creditors appryzing his jâ—s meriâ—â— for the Rent of Houses possessed by her self for their aliment as to years preceeding the intenting of the Caâ—se December 7. 1665. Smith and Duncan câ—ntra Robertson Here the Creditors had access to the wife 's other Tenements though the husband shortly after his marriage left the Countrey and the wife had obtained Dâ—â—reet of adherence and was proceeding to divorce A wifes obligation with her husband for a firm obliging them to pay conjunctly and severaly and also obliging to 〈◊〉 an annualrent out of either of their Lands was found null as to the obligement to infeft even as to the wife Deâ—â—mber 15. 1665. Bleis contra Keith A wifes renunciation of a part of her joynture after her contract of marriage and first proclamation was reduced as being done without consent of her husband albeit the husband knew of the 〈◊〉 and yet went on in the marriage and albeit he was an unsuitable match to her and that not only as to tâ—e husbands interest and during his life but also simply as to the wife Iaâ—â—ary 5. 1666. Lady Buâ—e and her husband contra Sheriff of 〈◊〉 A wife was found not to have interest to pursue the Defuncts Debiâ—ors for her half but only the Executors December 15. 1667. Lady Cranburn contra Lord Buâ—ley and others A wifes accompt of furniture for her person subscribed by her was found validâ— albeâ—t she was then married and a â—â—iâ—â—or without instructing the goods received and just price she being pâ—rsona illustris and the accompt not great for her own furniture February 20. 1667. 〈◊〉 contra Dutches of Monmouth A wiâ—e cled with a husband was found lyable for drugs furnished to her and her children at her command â—he having a peculiar Estate wherefrom her husband was excluded aâ—d he beâ—ng ouâ— of the countrey December 19. 1667. Gairnâ— contra Arthur A wife acquiring Lands was found not to presume that the same were acquired by the husbands money and to belong to him and his heirs unless it were instructed that she had heretables or other sumâ— exempted a communâ—one 〈◊〉 especially seing the wiâ—e dispoâ—ed her Lands to another and her husband as Baillie of the Burgh gave Seasine thereon Ianuary 29. 1668. Brown contra Nappiâ—land A wife predeceassing her third of her husbands moveables was found not â—o comprehend the best of ilk kind but that it â—elâ—oved to be lâ—â— aside as heirship moveable wherein the wife had no interest December 8. 1668. Goâ—â—â—et contra Nâ—irâ— though the husband was alâ—ve and could then have no heir A wife in heâ— contâ—act of marriage having discharged and renuâ—ced 〈◊〉 hereâ—able sum due to her in favours of her debitors who gave a new heretable security of the same date to her â—uture spoâ—se the wifâ— having made her husband her Executor and Legaâ—ar aâ—d dying within year and day the discharge and renunciation gâ—anted in favours oâ— a third party was found not â—o be 〈◊〉 by the dissoluâ—ion of the marriage but that the old security continued iâ—â—ovar by the new â—ecurity granted to the husband who was only obliged to restore the â—um in that security to his wifes Exâ—uâ—ors as a moveable obligation and not to her heir and that so it belonged to the husband himself as Executor Dec. 11. 1668. Scot con Aiâ—on A wiâ—e was found to be burdened with her husbandâ— herâ—table debâ—s December 23. 1668. Mckenzâ—e â—ontra Roberâ—son A wiâ—e pursâ—ing for her provision by her conâ—ract of marriage which bear her to be provided to the annualrent of her Tocher and as much more the same was sound effectual and that the wife was not obliged to instruct that her Tocher was payed seing she was noâ— obliged for payment thereoâ— in the contract anâ— the husband having only a â—um provided to himself and his wiâ—e in lifeâ—ent and after their deceasses to the mans 〈◊〉 daughters by a former marriage the wife having confirmed the same for implement of her contract was prâ—â—erred to the daughters and their substiâ—uâ—ion was â—ound nuâ—l by the Act of Parliament 1621. without reduction Ianuary 5. 166â— Syms contra Brown The like before February 22. 1665. Campbel contra Campbel A â—ifes infeâ—â—ment upon her contract of marriage was sustained though it bear that the husband should imploy the Tocher an equivalent sum for the wife in liâ—erent albeiâ— the Tocher was never paid by the Father not by the husbands neglect but by the fathers insolvency from the time of the conâ—ract seing the husband did not object tâ—â— same but granted infeftment Ian 11. 1670. Hunter câ—ntra Crediâ—ors of Petâ—r WITNESSEâ— were admitted to prove setting down of Marches by Arbiters February 8. 1662. Lord Torphâ—hen contâ—a Witnesses were admitted to prove a Warrand and Command being the Messengers Domesticks and so 〈◊〉 persons Ianuary 4. 1663. Maâ—â—oâ—n contra Hunter Witnesses were admitted to prove the Loan of Books â—hough far above 100. pound Ianuary 21. 1665. Scots contra Flâ—â—cher Witnesses were â—ound to prove a bargain of Victual aâ—â—er 1â— years time Iuly 14. 1665. Maâ—â—hâ—son contra Gib Witnesses Testimonies taken by the Commissars in a Divorce crâ—ved â—o be Reduced was found not to be published but the Clerk was ordained to give a Note of their Names Designâ—tion Age and purging of partial Council and the like bâ—t not of the particulars in the cause Ianuary 4. 1666. Laird of Milâ—toun contra Lady Milâ—toun Witnesses were not admitted to prove a Bond blank in the Creditors Name delivered to a Desender to infer an obligement to re-deliver the same February â—0 1667. Iohnstoun contra Iohnstoun Witnesses were found to prove Adultery albeit their Testimonies were not of the same individual Act at the same time and place Adultery being crimen genericum inferred by reâ—â—erable Acts and though neither of the Witnesses knew the Woman with whom the Adultery was committed but heard her named at the time they saw the Acts by the Adulterers servant and that some other Witnesses knew that she was not the Adulterers Wife February 25. 1667. Lady Milntoun contra Laird of Milntoun Witnesses Testimonies were found not to be inâ—ringed upon theirown re-examinaton in a second instance as being suborned or corrupted post â—us acquisiâ—unâ— by the first sentence albeit in the first Testimonies they were not purged of partial Council Ibidem Witnesses were found sufficient to prove a â—argain to have been anterioâ— to a Writ and that
of Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir