said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
is but a Reduction for not Production The said Point being of great Concernment and the Debate being upon a Bill and the Process not produced that it might appear whether it was intented within the 40 years or not it was not decided D. 197. Cranston contra Brown 21. Novemb. 1674. A Testator having left by Testament a Sum of Money due upon an Heretable Surety and having named his Sister as Executor and universal Legator she was pursued for payment of the said Legacy at the least that being likeways Heir she should denude her self of the Right of the said Sum. It was Alledged for her That the Subject being Heretable the Defunct could not bequeath the same in Testament It was Replyed That when res aliena is left in Legacy the Executor in Law tenetur luere and ought to redeem the same or pay the value and multo magis in this case the Testator having in effect left res sua though upon the matter res aliena as to the power of disposing of the same on Death-bed or by Testament And therefore the Executrix if she be Heir as she is in this Case ought to give the same and if she were not Heir ought to redeem the same as said is The Lords upon the debate amongst themselves considered that in Law legatum rei alienae is effectual if the Testator sciebat rem alienam whereas si nesciebat it is to be persumed he would not have left that which was not his own and tho the Testator upon mistake was ignorant that it was res aliena yet if the Legator was of so near Relation that it was probable he should have left the legacie at least the value if he had knowen it was res aliena the Legacy was effectual And that in the case in question the Legator was the Defuncts Nevoy by his Brother and the Sum that was left was his own tho Heretable as said is and the Testator either knew that he could not dispose of the same being Heretable and was presumed and obliged to know the Law and if he was ignorant in point of Law ignorantia Juris nocet and therefore the Lords inclined to sustain the Legacy But one of their Number having desired that the Decision might be delayed while the next day that he might have his thoughts upon the Case the same was delayed Strathurd Reporter Mr. John Hay Clerk D. 198. Pilton contra the Creditors of the Lord Sinclair 30. November 1674. THE deceast Lord Sinclair having maryed his Daughter with John Sinclair younger of Hermiston did dispone to him his Estate with the Burden of his own proper Debts mentioned in the Right and took a Bond for an Annuity of 8000 merks first in the name of John Watt and thereafter the said Bond being given back he did take another Bond for the said Annuity during his Lifetime in the Name of George Cockburn of Pilton Whereupon the said George did diligence by Comprysing and otherways against the said John Sinclair of Herdmanston and did also take the said John Sinclair's Liferent Escheat And upon the Grounds foresaid and a Suspension of double Poinding against him diverse Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond as being fraudulent and a contrivance to frustrate Creditors and to secure so considerable an Interest for the use of the Debitor contrare to the Act of Parliament 1621. The Lords notwithstanding preferred the said George Cockburn as having Right to the Duties of Herdmanston's Estate by vertue of the said Gift of Escheat reserving to the Creditors their Declarator of Trust or Reduction upon the said Act of Parliament And accordingly the whole Estate of Herdmanston being set in Tack thereafter the Tack-duty is payable to Pilton and the other Creditors in order conform to the said Decreet The Tacks-men being charged at the instance of Pilton Did Suspend upon double poinding pretending they were troubled by other Creditors of the Lord Sinclair And the said Creditors compearing did alledge that they ought to be preferred to Pilton in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Merks was a fraudulent contrivance in prejudice of the Lord Sinclair's Creditors that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation and thereupon might live plentifully his Creditors being defrauded and suffering in the mean time And that the Gift of Escheat of Herdmanstons's Liferent being granted intuitu and upon account of the said interest laborat eodem vitio and was in effect to the behoof of the Lord Sinclair It was Answered for Pilton That tho the said Bond was granted to him without an Onerous Cause yet intuitu of the same and thinking that he was thereby secured he had bona fide alimented my Lord Sinclair and had payed to himself and had engaged to others for him to pay diverse Sums of Money before any interruption made by the Creditors So that before any Diligence done by them his Right became Onerous and the Gift of Escheat of Herdmanston's Estate was taken by him to secure himself as to his relief And that the King and Exchequer did and might give the said Gift to him upon the consideration foresaid and thereupon in the former Decreet of multiple poinding he was preferred to all other Creditors And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair to Mr. George Gibson upon a Back-bond that thereby he and the other Creditors thereinmentioned being satisfied the superplus and benefite of the said Escheat should be applyed for the Aliment of the said Lord Sinclair And therefore tho Pilton should not have Right as he had to the said Tack-duty the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator to the uses foresaid and fall under his Gift It was Answered for the Creditors That they were content the Lords should modify an Aliment for the Lord Sinclair And that Pilton's interest should be sustained effeirand thereto the Superplus being applyed as it ought to be for their satisfaction The Lords for the most part enclined to Find that George Cockburn's Right to the said Annuity was Onerous In sua far as he could instruct that he had payed to or for the use of my Lord Sinclair any Sums of Money before the Creditors Diligence Yet some were of the opinion That the Laird of Hermanston having Married my Lord Sinclair's Daughter and having given the said Bond for the Annuity dureing my Lord Sinclair's Lifetime was a down-right contrivance contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity which if it had been taken in the person of my Lord Sinclair himself would have been lyable to his Creditors might be so conveyed in the person of another that it should not be lyable to the said Lord Sinclair's Debts and being ab initio fraudulent it
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
effectum And Arrestment of what is not yet extant is accidens sine subjecto It is thought That there is a difference betwixt a Debt that is not neither in spâ— nor obligatione and conditional Debts which though the Condition be not existing may be arrested and the Condition existing the Arrestment will be effectual and a fortiori Annualrents and Mails and Duties may be affected by Arrestment seing from the date of the Obligation dies cedit though non venit If a Debitor be in Possession of a Coal or of a Miln in his own hand what course can be taken by a Creditor at whose Instance there is a Dependence to secure the Profits in case he prevail What is the Reason of Difference betwixt Arrestment and Inhibition as to that Point seing Arrestment affects only what belongs to the Debitor for the time Answer The Arrestment relates to Goods and Debts the time of the Arrestment and Inhibition is simply that the Debitor should not dispone his Lands and Estate and Arrestments are a Diligence against the Party who is Debitor or has any Goods in his Hands belonging to the Arresters Debitor himself Arrestment of Conditional Debts IF a Creditor should arrest a Sum due to his Debitor upon a Wadset in case of Redemption What will the Import be of such an Arrestment Answer If redemption follow and after the Order another Creditor arrest It is thought That the Arrestment before will be preferable as in the case of the Arrestment of a conditional Debt which will be drawn back Existente conditione vide Wadset Quaest 1 ma. Litera W. Arrestment Loused QVaeritur If upon a Dependence or Bond unregistrate there be Arrestment laid on and the same be loused and thereafter the Goods arrested be poinded The Cautioner for lousing the Arrestment will be lyable Ratio Dubitandi is That the Goods were not fraudfully put away by the Debitor Quaeritur If after the Arrestment the Debitor contract Debts and the Goods be poinded for the said Debt contracted after the lousing the Arrestment Quid Juris Will the Cautioner be lyable Per Aversionem AVersione emere aut locare dicimur cum universaliter uno pretio vendimus aut locamus Duobus enim modis locatio fit vel per Aversionem vel ut in pedes vel mensuras merces praestetur Thes Bes verbo Buschstauff 127. B. Back-bonds to the Exchequer THE Exchequer having granted Gifts v. g. of Recognition or others but upon Back-bonds in favours of Creditors and of the Wife and Children So that they have reserved no Interest to the King but to themselves only to regulate and arbitrate the dispenceing the Benefite of the Back-bond in favours of Creditors and the Wife and Children May they proceed and apply that Benefite in favours of such as apply to them without calling the other Parties It is thought That the Lords of Exchequer are to be considered as Arbitri and that their Arbitrium is regulatum and should not be used without citeing of all these who have any Interest that upon full hearing of all Parties they may proceed Bairns Part. IF a Son get a Portion in order to live upon it seorsum and out of his Fathers Family Quaeritur If he can be thought a Bairn and claim a Bairns-part seing he has not granted a Discharge nor accepted the same in Satisfaction James Cheisly There being Three Heirs of diverse Marriages and certain Provisions in favours of the Heirs of the Marriage being made in the respective Contracts of Marriage Quaeritur If there being no other Bairns in familia they will have their Bairns-part notwithstanding they are Heirs And if they have Quaeritur If they must confer their Provisions if they be unequal Answer They will come in as Bairns And as to the second Quaerie It is thought they should not confer seing they have their Provisions not simply as Heirs but as Children by the said Prosions Bond Heretable IF a Bond bearing an Entail of a Sum. Viz. To the Creditor and the Heirs of his Body which FailÈieing to a Brother or Heir of a Brother who would not succeed either him or his Children be Herotable in Respect of the Entail though Executors be not excluded neither doth it bear a Clause of Infeftment A Band being granted to a Husband and his Wife the longest Liver of them Two and the Heirs of the Marriage which FailÈieing to the Husbands Heirs and Assigneys whatsomever Quaeritur Whether the said Bond belongs to the Heirs or Executors of the Husband Ratio Dubitandi It is granted since the Act of Parliament 1641. And the Act of Parliament 1661. and the Act of Parliament 1641 are positive that all Bands for Sums of Money bearing Annualrent are Moveable Except in the two cases therein exprest viz. Of an obligement to Infeft Or of a Clause Excluding Executors And on the other part the said Acts seem only to intend Bonds containing payment of Annualrent for profit which upon that account before the said Act were Heretable after the Term Whereas the Bond in Question is not only Heretable upon the account foresaid of payment of Annualrent But because the same is expresly TailÈied and provided in favours of Heirs and in the first place of Heirs of Provision of the Marriage And the Sum is of purpose Heretably fixed for a Liferent to the Wife and a right of succession to the Bairns of the Marriage so that the Husband cannot Test of it And it cannot fall under Executory ab intestato in prejudice of the said TailÈie And is of the same Nature as if a Bond were taken to a Man and his Heirs Male which would not be Moveable seing it implyes the Clause excluding Executors When a Bond is taken to the Creditor and FailÈieing of him by Decease to another person bearing only Annualrent and no Hererable Clause Quaeritur If the Creditor to whom it is granted may Dispose of it by Testament Ratio Dubitandi it seems not to be Heretable by the Act of Parliament On the other part the said Substitution imports the Executors to be excluded and a Testator cannot dispose by Testament of what ab intestato could not fall to Executors And though the Creditor be Fiar and may dispose of the said Sum yet he cannot do it on Death-bed the same being an Heretable Sum. If at least after the Death of the Creditor the said Sum be Heretable in the Person of the Substitute Ratio Dubitandi The same is Moveable by Act of Parliament And the Substitute having now right to it he is in the same case as if the Bond were granted to him Ex adverso the same being semel Heretable is semper Heretable untill it be made Moveable by a Charge If a Bond containing such a Substitution should be made Moveable by a Charge would it notwithstanding belong to the Substitute If an Heretable Bond may be comprysed And if the Legal expire will the Creditor have right to the sumes contained
Executa if there be another nearer to the first Defunct To consider the Civil Law as to Haeres cum beneficio Inventarij If an Executor be not Haeres in mobilibus cum beneficio Inventarij Executor Creditor A Creditor being confirmed Executor and dying before the Testament be Executed Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors in respect of the Diligence of his Predecessor and that Confirmation did affect the Goods for their satisfaction Three Creditors being confirmed for their Respective Debts and one of them deceasing before Sentence Quaeritur Will the Office and benefite belong to the Survivers entirely Ratio Dubitandi A Testament Creditor is a Diligence and there is no other way of Diligence to affect the Moveable Estate of a person deceased and it is equivalent to diligence against Debitors on Life affecting their Moveables And on the other part Executory being an Office the Law preferreth the Creditor If the nearest of Kin do not own it But cum sua causa and so that the nature of the thing is not altered And therefore the Executor dying the Office and Diligence doth evanish Quid juris in the case of an Executor Creditor If after he is satisfied the nearest of Kin will have an Action for the superplus If a Testament be Execute by a Sentence against the Debitors though payment be not made Vide Hope Executor Nominate IF an Executor Nominate be Lyable as a Tutor not only for what is confirmed but what he might have confirmed and intrometted with Tweeddale contra D. of Monmouth Executory WHether Vniversitas bonorum That is an illiquid Right Though the Subject may consist of Moveables as a single Escheat Conquest Society as to a Trade or Shipping Will fall under Executry If Casualities of Ward Liferent Escheat Non-entry Marriage will fall under the same Or to the Superiors Heir There being a Bargain of Lands in nudis finibus contractûs vel Dispositionis will the Price belong to the Heir who must perfect the Bargain Answer It is thought not Seing the Price is a Moveable Sum And it appears that the Defunct having sold the Lands had use for it and did intend to uplift it Whether a Gift of single Escheat will fall under Executry or belong to the Heir Ratio Dubitandi That the Escheat is jus Vniversitatis And nothing is in use to be confirmed but either particular Moveables or Debts and plenishing estimate in cumulo Item Whether a Gift of Liferent Escheat which as to the Donator is a Moveable Interest will fall under Executry Ratio Dubitandi As in the former And likewise that during the Liferenters Lifetime it cannot be construed what it will amount to And it has Tractum futuri temporis The same Question may be as to a Tack Assigned Whether the Heir who has Right to a going Coal will have Right to Buckets Chains and other Instruments as being accessoria and destination addicted to the Coal as the Colliers Or if they will fall under Executry A Person being about the building of an House And the samen being begun and certain Materials as Stone Lime Slats and others being prepared o that use Whether will they belong to the Heir for the reason foresaid or fall under Executry A Daughter having accepted her Tocher and Provision by Contract of Marriage in satisfaction of what might fall to her either by her Father or Mothers Decease The Contract of Marriage being after her Mothers Decease Quaeritur If another Sister will have the Mothers part entire without respect to her Sisters Interest being renounced as said is Ratio Dubitandi That the Father who is Lyable for his Wifes Third is in Effect Discharged as to his other Daughters part of the samen And on the other part the Mothers part belonging to her Children non jure Legitima as Bairns but as Executors and representing her If any of them Decease before Confirmation or be unwilling to confirm their Renounciation will be ineffectual as by a person not having Right Quaeritur If the the Sister who is not Excluded should confirm If the Sister who is Excluded as said is may at least have Action against her for her part of the Mothers part To the effect that the Discharge in favours of her Father may be effectual It is Answered That unless she be confirmed her self she can have no part of that which belonged to her Mother And albeit by the Act of Parliament anent Executors Nominate the nearest of Kin has Action for the superplus of the Deads part exceeding the third That is only in the case therein mentioned the said Act giving Condictionem ex lege in that case only Whereas that Act doth not militate in other cases where there is no legitime but only an Interest to represent which cannot be effectual sine Aditione Confirmation being in effect Aditio in mobilibus Quaeritur If a moveable Escheat will belong to the Executor seing Moveables belong to the Executor and moveable Sums and other moveables fall under the same Answer It is thought that Escheat being Jus Vniversitatis should belong to the Heir Seing not only mobilia do fall under the same but also such Rights and Interests as cannot belong to an Executor as Tacks if they be not Liferent Tacks And it is the stile of Gifts that the Escheat should be holden of his Majesty which does not quadrate and is not proper to be said of such things as belong to the Executor Extent IF the Inquest be warranded to Extend unless there were former Retours upon a Commission to Extend Extinguishment of Rights IF the Heretor of Praedium Dominans acquire the Right of Praedium serviens Whether doth the Right of Servitude extinguish quia res sua nemini servit So that if he sell the Dominans the Servitude doth not revive If the Heretor of Land acquire a Right of Annualrent out of the same Whether or not is the said Right of Annualrent extinguished or suspended only So that it may revive if the Right of Property be taken away by Reduction F. Faculty to alter LAnds being disponed with power to alter without these Words Etiam in Lecto If that Faculty may be used in Lecto A Person having reserved a Power to alter in Lecto May he then use that Power in favours of any other Person than his Heir seing he is not in legitima Potestate as to the disponing an Heretable Interest and on the other Part the Heir has no prejudice Faculty to Dispone BY a Write granted by the Earl of Callender to his Lady he gives her power to dispose of the half of his Estate Quaeritur The said Power being Personal without mention of her Heirs and she not having used the said Faculty If the said Power be Transmissible Found by the Lords That the Earl of Dumfermling as Heir to his Mother had right thereto and he having assigned the same to his Son he recovered
Scotland it may be affected If a Prince may command a Subject living Abroad under his Enemy to retire and come home And if he disobey may he be proceeded against and be divested of any Fortune and Liberty competent to him as a Native Quoties Rex Princeps vel alius in alterius Regis vel Principis Territorio bona habet possidet ratione quorum Juramentum fidelitatis praestare solitus est per hoc non efficitur ratione suae personae seu personali obligatione subditus aut subjectus nec quoad personam sortitur forum nisi secundum quid ita ut pro tali possessione bonorum conveniri possit coram Judice loci in cujus Territorio bona sunt Thes Bes in litera H. 70. Huldigung p. 402. Substitutes A Bond for a Sum of Money being granted to Sempronius and FailÈieing of him by decease to Titius and Titius his Heirs and Assigneys Quaeritur who is Fiar Answer The first person Titius being only substitute FailÈieing of him by decease and Successor in spe Quaeritur If Sempronius may dispose of the said Sum by Testament as he may inter vivos Ratio Dubitandi That Titius is substitute by a deed inter vivos Answer It is thought he may Seing such Deeds are upon the matter Donationes mortis causa in which voluntas est ambulatoria Quaeritur If the said Substitute will be lyable as Heir of TailÈie It is thought he should be lyable Seing if there were an Infeftment in the terms foresaid the Substitute could not succeed but as Heir of Provision If a Bond bearing the Substitution foresaid be registrate Quaeritur If the Substitute being named as said is may charge thereupon Answer It is thought not because the Bond being registrate is a Decreet as to the first Person but the Substitute having only right instar haeredis by Succession he cannot charge no more than an Heir of Provision Substitutio SVbstitutio est Designatio secundi vel ulterioris haeredis Substitutio vulgaris est ea quae fit in casu vulgari haereditatis non aditae nec acquisitae Perez Institut lib. 2. tit 15. Substitutio Pupillaris est qua Parentes Liberis suis in potestate sua impuberibus substituunt in casu mortis ante Pupillarem aetatem acquisitae haereditatis Constitutione Divi Marci Veri substituens in alterutrum casum duntaxat vel Vulgaris vel Pupillaris substitutionis in utrumque substituisse intelligitur alterum sciêª expresse alterum tacite Perez Ibidem Quaeritur De substitutionibus in Taliis nostris istis verbis viz. Cum Terrae disponuntur Titio haeredibus suis de corpore suo prognatis quibus deficientibus haeredibus masculis c. utrum sunt pupillares an vulgares Responsio Eas utramque Substitutionem continere Deficientibus enim Haeredibus institutis in primo gradu quolibet casu sive non adierint sive haereditatem adierint defecerint ad substitutos haereditas pertinet Substitution in Bonds A Bond being granted to the Creditor and failÈiening of him by decease to another person Quaeritur If the Person substitute will be lyable to the Creditors Debt at the least pro tanto Seing the Sum was in bonis and his Debt ought to be satisfied out of his Estate If such Bonds may be altered by the Creditor not by uplifting which he may do being Fiar but also by changing the Bonds and taking the same to himself and any other person or to his Heir Seing the Bonds seem to be a perfect Donation in favours of the Substitute and on the other part they may be thought mortis causa If the Creditor may dispose of such Sums by Testament A Bond being granted by diverse Persons to my Lord Dundonald and failÈiening of him by Decease to his Son the Lord Cochran his Heirs and Executors and after the decease of Sir John Nicolson one of the Debitors he having taken a Bond of Corroboration from his Brother Sir William to himself and failÈiening of him by decease to his Grand-child then Lord Cochran his Father being deceased Quaeritur Seing the first Bond stands as to the rest of the Debitors Whether the Lord Cochran his Fathers Executors will have Right to the same And what course shall be taken to get the Right of the former Bond settled in Cochran's Person Quaeritur If the former Bond being null and in the Bond of Corroboration there be an Obligement to Infeft if the nature of the Sum as to the former Quality of Moveable be altered A Bond being granted to Robert Selkirk Merchant in Edinburgh and Katherine Inglis his Spouse the longest liver of them two in Conjunctfie and failÈiening of them both by decease to Robert Selkirk their lawful Son and to the Bairns lawfully to be procreat of his Body which failÈiening to the other Heirs lawfully procreate or to be procreate betwixt the said Robert and his said Spouse Which all failÈiening to the said Katherine Inglis her own nearest and lawful Heirs Executors or Assigneys with this Provision That it shall be leisum and lawful to the said Robert Selkirk Elder at any time dureing his lifetime vel in articulo mortis by himself alone to uplift discharge or otherways assign and dispone the Sums in the said Bond in haill or in part to any Person or Persons he shall think expedient and to make and grant all Writes Rights and Securities requisite thereanent in due and competent Form without the Consents and Subscriptions of the said Katherine Inglis his Spouse and Robert Selkirk his Son or his foresaids had or obtained thereto in any sort The abovementioned Robert Selkirk the Husband and Robert Selkirk his Son being both deceased without Heirs either of the Body of the said Robert Selkirk Younger or of the Marriage betwixt the said Robert Elder and the said Katherine Inglis so that the said Katharine has Right to the said Bond Quaeritur Whether the same will pertain to her in her own Right as Fiar or as substitute in the last place and representing the Fiar And who is Fiar by the said Bond Whether the said Robert Elder his Son or the said Katharine who pretends to be Fiar because the Right of Succession terminats upon her and her Heirs It is Answered That albeit when a Bond is conceived simply to two Persons in Conjunctifie and the Heirs of one of them the Person to whose Heirs the Sum is provided is understood to be Fiar yet when there are diverse degrees of substitution of the Heirs of diverse Persons the Person whose Heirs are first substitute is Fiar and both his own Heirs substitute in the first place and the other Heirs of any other Person substitute after them will be Heirs of Provision to him As when a Bond is taken to a Husband and his Wife the longest liver of them in Conjunctfie and to the Husbands Heirs whilk failÈiening to the Wife her self and her Heirs tho the Right of Succession as to the
said Bond does terminate upon the Wife and her Heirs yet the Husband will be Fiar both as dignior and because the Right of the Sum will pertain to his Heirs in the first place and to the Wife and her Heirs only upon their failÈieur and as Heirs of Provision to them And Therefore In the present case the Money being lent by the Husband and being provided after his decease to his Son Robert and the Heirs of his Body whilk failÈiening the Heirs of the Marriage betwixt the Husband and the Wife and to the Wifes Heirs only in the last place It is thought That her Husband is Fiar and that the Wife and her Heirs will only have Right as Heirs of Provision unto him And if Robert should have had Children or if there had been other Children to the said Robert Elder by the said Katharine it were absurd that they should have had the Right of the said Sum which was lent by the Husband not as Heirs to him being their Grand-father or Father but as Heirs to the said Katharine being their Mother or Grand-mother or that the said Katherine surviving her Husband should have power as Fiar of disposeing the said Sum or to have given it to a second Husband in prejudice of the said Robert her Son or the Heirs of his Body and the Heirs if there had been any thereafter procreate of her Husband and her tho descended of both If it be found by the Lords that either the said Robert Selkirk Elder or his Son Robert was Fiar the said Katharine must be served Heir of Provision to the Fiar Substitution in Legacies A Legacy being left to a Person and failÈiening of him by decease to another Quaeritur What the Import of that Substitution is Answered It is thought That it is Substitutio Vulgaris and that the Effect of it is That if the Legatar die before the Testator so that the Right do not take effect in his Person it should belong to the Substitute But that is not fideicommissaria So that the Legatar dieing after the Testator it would belong to his Executors and not to the Substitutes Successio in Maternis A Grand Father upon the Mothers side having the time of his decease two Daughters and Children of a third Daughter Quaeritur If the two Daughters will only succeed and exclude the Children of the third Ratio Dubitandi That Representation is in order to the standing of Families and in the case of Primo-geniture whereas in Successione materna the Interest of Families is not considered seing the Grand Children by their Mother has not somuch as caput in Familia And for the same reason mobilia because they are not the Foundation of Families admitt no Representation Answer It is thought by our custom The Children of the deceist Daughter will succeed with their Materterae Et non potest reddi ratio omnium quae a majoribus constituta sunt If the Children of the deceast Daughter do succeed Quaeritur If the deceased Daughter has left Sons and Daughters whether the eldest Son of the said Children will succeed to their Grand Father Or if all the Children will be Heirs Portioners as to their Mothers part Seeing for the same reason that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae a fortiori they who are not in Familia at all ought to be Heirs portioners Answer It is thought that the eldest Son of the deceast Daughter will succeed as Heir portioner with his Aunts and the Law doth favour not only Families as to preservation after they are constitute but likewise as to their Constitution And the eldest Son albeit he be not in Familia materna may constitute and be a head of a Family of his oun Successio in Stirpes SI duo Conjuges ita testentur post utriusque obitum utriusque haeredes ex aequo successuros haeredes fore tunc non in capita sed stirpes succedunt in duas aequales portiones haereditas dividenda est quia quilibet suos haeredes aeque dilexisse creditur illis ex aequo prospicere Thes Bes verbo Gleich 62. P. 323. 324. sect ult De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus QVaeritur De Feudo amisso reverso quo Jure censendum sit utrum Haereditatis an Conquestus de omnibus commissi speciebus competit sive ob Alienationem sive Disclamationem sive Purpresturam vel Baratriam aut qualemcunque Feloniam aliudve delictum feudum apertum dicatur Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit de ea praxi nostra maxime solenni textui accommodatiori quaestionem agitabimus Decisionem ad reliqua commissa indistincte porrigendam praefati Quaeritur igitur cum Superior feudum per Recognitionem sibi asseruit utrum feudum Recognitum post obitum ipsius ut conquestus ascendat An vero ut haereditas cum feudo dominanti descendat posito feudum dominans haereditarium esse Quaestio haec in se difficilis gravissimas consequentias secum trahens haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat Quod ut patefiat sciendum duas apud nos invaluisse Recognitionis species ex causarum diversitate diversas unam ob defectum Vasalli alteram ob delictum Ex posteriori causa feudum ob delictum admissum Vasalli dicitur proprie committi Ex priori Vasalli prosapia quam in prima feudi concessione dominus ad feudi successionem asciverat extincta feudum dicitur finiri cum stemmate in quo resederat exspirare si enim ab initio contessum est alicui haeredibus masculis ex ipsius corpore progenitis vel descendentibus masculis Vasallo mortuo nec ullo ex descendentibus masculis superstite dominus feudum ab haeredibus talliae vel per foeminas descendentibus revocat hanc feudi revocatïonem Balfurius Recognitionem vocat ejus praxin prodidit in Tract de Recognitionibus datam 18. Decemb. 1506. Regio Advocato agente contra Joannem Margaritam Auchtrans haeredes alterum talliae alteram lineae Et hoc Genus Recognitionis etiam in feudis Francis locum habet feudo hac ex causa revocato etsi dubitari potest utrum in persona domini ád quem revertitur Haereditatis an Conquestus naturam induat certum est eodem jure quo feudum dominans censeri eandem naturam qualitatem sortiri respectu successionis omni alio respectu qui ex distractione divisione propriorum seu haereditatis conquestuum secundum nostram consuetudinem posset emergere Quin etiam hoc casu non solum Dominium directum dominium utile attrahit sed possessio civilis possessionem naturalem advocat adeo ut Dominus directus possessionem naturalem nactus non dicatur novam adeptus sed veterem continuare possessionem
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
by the Act of Parliament is secured and his Right cannot be questioned unless he be particeps fraudis or acquire the same without an Onerous Cause which by the Act of Parliament is only probable Scripto vel Juramento Yet the Lords enclined to reduce the Right granted by the Son unless it were offered to be proven that it was for an Onerous Cause in respect of several presumptions alledged and informed by the Pursuer And before Answer as to the Relevancy ordained both Parties to condescend upon their presumptions hinc inde of Fraud or the Cause Onerous for the granting of the said Right and to prove the condescendence I have ever thought that the practice of the Lords to ordain Parties to prove before Answer as it is late is accompanied with many inconveniencies seing by such Acts which are not of Litiscontestation Processes are still keeped loose and after that irregular way of probation the debate of Relevaney is again resumed to the great vexation both of Parties and Lords and after the Lords Interloquitor of Relevancy there may be again Litiscontestation So that upon the matter there are two Litiscontestations in one Cause Newbyth Reporter It being again debated What the Certification should be in such Acts. viz. Whether the Alledgance should be holden as not proponed or that the Lords should advise Which in effect is no certification The Lords were not clear to detetmine which is a great Informality and a pressing reason against that anomolous way D. 49. Reid contra Tailzifer 16. Novem. 1666. IN the case William Reid contra Tailzifer and Salmond It was Found That a Testament is to be thought execute so that thereafter there is no place to a non Executa when a Decreet is recovered against the Debitors though the Executor decease before he get payment Because the Right of the Debt is fully established in his person by the Decreet and he having done diligence it ought not to be imputed to him that the Debitor is in mora as to the payment of the Debt And there being Jus quaesitum by a Decreet and Execution having followed thereupon by Horning after which Annualrent though not due ex pacto yet becometh due ex lege or by Comprysing at the instance of the Executor and Infeftment thereupon It were absurd that all these Rights should evanish which would necessarly follow if there were place to a non Executa Seing the Decreets and Rights foresaid following thereupon could not be transferred or settled in the person of the Executor ad non Executa who doth represent the Defunct only and not the Executor at whose instance the Decreet is obtained and Execute D. 50. Purves contra Blackwood Eod. die ADam Purves having pursued Reduction and Improbation of a Comprysing and the Grounds and Warrands thereof against Blackwood The Lords In respect the Comprysing was deduced Twenty four Years before did refuse to grant Certification against the Letters ad Executions and against one of the Bonds being Registrate when the principal Bonds were given in to the Clerk Register to ly in publica custodia In respect of the Troubles of the Time and the loss and disorder of the Registers and that the Extract was produced and the Defender was content to abide at the Truth thereof Hay Clerk And Newbyth Reporter D. 51. Govan contra Paip 24. Novem. 1666. IN the case Govan contra Paip The Lords Found That an Assignation not being intimated in the Cedents time and consequently the Debt being in bonis Defuncti ought to be confirmed But the Lords in consideration that the Debt was small Found Process at the Assigneys instance he finding Caution for the Quot effeirand thereto D. 52. contra Miln Eod. die An Order being used for Redeeming a Wadset the Executor Creditor of the Wadsetter pursued the person in whose hands the Consignation was made for payment of the Sum Consigned And in the Process the user of the Order was called and Decreet was obtained but before it was Extracted he deceast and there was debate upon the Oath of the Consignator The Lords Found That the user of the Order being a person having interest and called ab initio nothing could be done until the Process was transferred against some person representing him In the same Process it was argued amongst the Lords whether a Sum being consigned upon an Order of Redemption the user of the Order may pass from it and lift the Sum without consent of the Wadsetter And it was remembered by some of the Lords That upon an Instrument of Consignation Process was sustained at the instance of the Wadsetter against the Depositar in whose hands the Sum due upon the Wadset was consigned for making the Sum forthcoming But in this case nothing was done It appeareth that after Consignation Jus is Quaesitum to the Wadsetter so that the Sum being consigned and sequestrate to his behoof cannot be uplifted without his consent D. 53. Lesly contra Bain 6. Decem. 1666. IN a pursuit to make forthcoming after serious deliberation and debate amongst the Lords as in a case daily occurring and wherein the Decision would be a preparative and practique It was Found That a pursuit to make forthcoming a Sum of Money due to a Debitor is in effect Execution and equivalent to a poinding Seing Money being in nominibus and not in specie could not otherwayes be affected and poinded and therefore could not follow but upon a Decreet and not upon a Bond not Registrate 2. It was Found that an Arrestment is but an Inchoat and incompleat Diligence and notwithstanding thereof the Sum Arrested remaineth in bonis of the Debitor Seing notwithstanding thereof Goods belonging to a Debitor may be poinded As also Arrestment being a Negative Diligence whereby a Sum Arrested is secured so that the Debitor cannot uplift and the person in whose hands the Arrestment is made cannot pay or give away the same in prejudice of the Arrester and as in immobilibus Inhibition doth not establish a Right in the person of the Creditor unless he deduce a Comprysing but doth affect the same so that the Debitor cannot prejudge the Creditor and his Diligence if he Compryse There is Eadem Ratio in Arrestments in mobilibus Upon these Grounds it was Found That the Debitor deceasing the Sums Arrested being in ejus bonis ought to be confirmed and that the Creditor could not have Action against the person in whose hands the Arrestment was made and the Appearand Heir of the Debitor called for his interest but should confirm himself Executor Creditor D. 54. Monteith contra E. Calender and Gloret 7. Decem. 1666. THE Laird of Parkley Hamilton as principal and Hamilton of Kinglassie and certain others his Friends as Cautioners being Debitors in Two Bonds Kinglassie in consideration that Parkley had Disponed to him a Right of Wadset which he had to the Lands of Touch by a Contract did oblige himself to satisfy and pay the Sums contained in the saids
sequitur invalidam esse superius enim dictum est in contractibus obligationibus de successione Talliata de rebus immobilibus praediis nos quotidie disponere eas autem donationes esse mortis causa patet ex praedicta Definitione mortis causa donationis quod omnes de successione contractus mortis contemplatione plerumque non sine mortis commemoratione fiant effectum post mortem sortiantur in iis ambulatoria sit voluntas nisi accedat pactum de non revocando Ad Tertium Respondetur falsam esse Propositionem nec enim cessante causâ impulsiva cessat effectus nec qui periculo imminente mortalitatis admonitus Testamentum condidit si periculum effugerit aut eluctatus fuerit eo minus in voluntate eadem perseverasse censebitur testatus discedit nisi revocasse constiterit Ad Quartum Respondetur Dispositionem reditu eveniente haud nullam aut irritam esse sed revocabilem id ex eo demonstrari Quod sibi soli tantummodo reservarit si domum rediret potestatem revocandi si enim inanis caduca fieret Donatio in casu reditus quorsum ista potestas sibi soli reservata revocandi donationem quoad omnes ipso conditionis eventu extinctam revocatam Ad Quintum Sextum Respondetur Negatur instrumentum post Donatoris reditum penes eum esse penitus supervacuum disceptare an penes eum fuerit cum nunc penes actorem sit sibi a donatore traditum nec necesse est docere quomodo quando ad se pervenerit Senatus Interlocutus est Donationem istam Testamenti naturam haud sapere sed validam efficacem esse Sed si constiterit probatum fuerit penes donantem instrumentum post ejus reditum fuisse tuno revocatum irritum esse An autem eo quod penes actorem nunc sit a revocatione discessum sit reviviscat Donatio interloqui sustinuit ulterius inquirendum censuit quando quomodo ad actorem pervenerit D. 124. Whitehead contra Straiton 14. Novemb. 1667. RObert Whitehead of Park pursued John Straiton Tacksman of the Park of Holy-rood-house for the price of a Horse put in the said Park to be pastured for 4. shil per night which after search cannot be found It was Alledged That by a Placad affixed upon the Gate of the Park It was intimated that the Keeper of the Park would not be answerable for any Horses put therein although they should be stolen or break their Neck or any other Mischief or Hazard should overtake them It was Replyed That by the Law Nautae Caupones c. the Keeper ex conducto is lyable unless it were alledged That it had been expresly agreed that he should not be lyable or at the least that it was known to the Pursuer that such a Placad was affixed when he put in his Horse The Lords Before answer ordained the Reporter to enquire and hear the parties upon the terms of the Agreement when the horse was put in whether it was told or known to the pursuer that the keeper would not be answerable Castlehill Reporter D. 105. Gardiner contra Colvil 16. Novemb. 1667. IN an action Gardiner contra Colvil the pursuer being ejected during her Husbands absence out of the countrey and when it was supposed he was dead The Lords sustained the pursuite Though the time of the adviseing the probation It was offered to be proven that he was living and did declare that albeit the Husband were at the Barr they would give the Wife the benefite of Juramentum in litem in respect of the wrong done by the Defender and the particulars and quantities could not otherwise be proven Actor Longformacus alter Wallace Castlehill Reporter D. 106. Trotters contra Lundy 20. Novemb. 1667. THE Children of George Trotter in Fogorig being confirmed Executors to their Sister Isobel Trotter pursued James Lundie Cautioner in a Bond for James Trotter of the East-end of Fogo for the Sum thereinconteined It was Alledged that the said James being Heir to his Grand-father Alexander Trotter in the East-end of Fogo and the said George Son to the said Alexander and Executor to him they did transact together that the Movables belonging to the said George as Executor should remain with the Heir and the said James and the Defender as Cautioner did for the cause foresaid grant the said Bond blank in the Creditors name wherein the said George filled up the name of John Trotter in Chester his Brother and procured from him an Assignation for the said Isobel his Daughter And that thereafter upon a Submission betwixt the said George and Alexander Trotter Son to the said James granter and principal Debitor in the said Bond The Arbiters ordained the said George to give back to the said Alexander the said Bond and Assignation with a Discharge thereof and therefore the said Isobel being in familia paterna and the said Bond and Assignation being taken and procured as said is by the said George the Father in favours of the Daughter who hath no visible Estate or means to acquire any such Right he was still master of the same And it being ordained to be Discharged as said is the said Debt is Extinct It was Answered that the Bond being filled up and Registrat in the name of the said John Trotter and the samen being Assigned and the Assignation in favours of the said Isobel intimat and after her decease her Executors having confirmed the said Debt all before the said Submission her Father could not by the Submission or any other deed of his Evacuat the said Right Established in the person of the said Isobel and her Executors And as to the Practique betwixt Monimusk and Pittarro whereupon the Defenders alledge it doth not quadrate to the Bond in question it being never delivered but depositat in the Uncles hand Mother Brother to the Child and in the same case It was Found That the Father could not retract a reall Right made in favours of his Child and Heir And here there is Eadem Ratio The Lords Found That the Father being Master of a Bond or Right whereupon nothing followed being granted by himself may throw it in the fire and may consequently Discharge it But the said Right being made publick and compleated by the delivery and which is equivalent by some publick deed by Infeftment if it be Heretable or by Assignation intimated or confirmed Testament if it be Movable he could not thereafter Retreat or prejudge the same And repelled the Defence in Respect of the Answer Hackertoun Lord Reporter Mr Thomas Hay Clerk D. 107. Pollock contra Pollock eod die JOhn Pollock having granted a Bond of 5000 Merks to James his second Son of the first Mariage The said James intented and pursued for payment both Robert eldest Son of the same Marriage Heir of Line and John eldest Son of the second Marriage and Heir of
Provision as charged to Enter Heir respective It was alledeged for the Heir of the first marriage that he offered to renunce And for the Heir of Provision that the Heir of Line ought to be first discussed by adjudication and condescended upon movable Heirship which might be adjudged It was Answered for the Heir of Line that his Father having provided him had taken from him a Renunciation of all that could belong to him as Heir So that he could have no Right to the movable Heirship which in respect of his Renunciation would be considered as other movables and fall under Executrie It was Replyed for the Heir of provision that by the Renunciation the Heir of Line had renunced his kindness to the effect his Father might have power to dispose of the Heirship but his Father not having disposed thereof the Right returned to the Heir of Line again the Renounciation being in favours of him and his Heirs as in Renounciations of that nature as to Lands if the Father does not dispose of the same they will notwithstanding belong to the Heir Some of the Lords thought there should be a difference betwixt Lands and Movable Heirship In respect the Right of Lands whereof the Father died infeft cannot be Setled in the person of any other but the Heir who therefore ought to have Right notwithstanding of the Renunciation But the Movables which should fall under Heirship by the Renunciation of the Heir cease to be Heirship and may be confirmed as other Movables Others Thought that the Effect of such Renunciations should be the same as to Movables and Lands the Fathers intention being one and the same for both and therefore as the Right in the construction of the Law returneth to the Heir of the Father who doth not otherwise dispose of his Lands there is the same reason as to movable Heirships And as to the pretence foresaid it is of no weight seing if it were the Intention of the Father that by such Renunciations the Son should be denuded without Return though the Father should not dispose of his Lands the Son may be pursued and forced to denude himself that his Renunciation may be effectual in favours of the nearest of Kin. The Lords before answer ordained the Renunciation to be produced that they might consider the Tenor of it D. 108. Tacksmen of the Custumes contra Greenhead Eod. die THe Custums of the Borders being set in Subtack to Greenhead and others by the Tacksmen of the haill custumes of the Kingdom Greenhead is pursued as representing his Father one of the Subtacksmen for the dutie the year 1650. It was alledged That the Subtack was altogether unprofitable upon the occasion of the English Invasion so that Beasts and other Goods were not imported nor Exported that year as they had been in use formerly It was Answered that albeit in praediis Rusticis in case of Sterilitie Vastation and such other Calamities that cannot be avoided There may be abatement craved Remissio Canonis yet in this case the Subject being conductio rei periculosae Jactus Retis the Subtacksmen ought to have no abatement and are in the same case as Tacksmen of Salmond fishing who will be lyable for the duty albeit no profit arise to them The Lords Found That Subtacksmen should have abatement But the Question being most Quatenus and concerning the proportion because though the Subtacksmen had undoubtedly loss yet it was not Total there being some Commerce betwixt the Kingdoms for that year some Moneths It was Found in end upon hearing of Parties that the half of the Dutie should be abated Actores Lockhart Cuninghame Alteri Sinclair Mr Thomas Hay Clerk The Law is very clear ff Locati and the Doctors upon that Title not only in praediis but in conductione vectigalium and the like in case of an insuperable Calamity remittitur Canon merces but they are not so clear as to the Quatenus and proportion of the abatement when the detriment is not Total But it is just the abatement should be proportionable to the loss And accordingly The Lords decided D. 109. Justice Clerk contra Lambertoun 23. Nov. 1667. IN the case the Justice Clerk contra Lambertoun the probation anent the value and worth of the Woods pertaining to the Justice Clerk and cutt and intrometted with by Lambertoun being advised It was considered and represented by some of the Lords that had been Commissionated to examine the Witnesses adduced by both parties being allowed to have a joynt probation that the probation was dubious the Witnesses for the Pursuer declaring too highly and the Witnesses for the Defender too low as appeared And that the Subject of the Question not being de re which is the proper Object of Sense but de rei valore qui cadit sub Judicium Intellectum The Testimonies of the Witnesses are not de rei veritate but de credulitate opinione and therefore are not numeranda sed ponderanda according to the circumstances both of their oun quality and the quality of the Declaration whether they have declared verisimilia and whether animose and such like and whether they have given a probable reason of their knowledge That in this case the Witnesses that have deponed most to the advantage of the Pursuer are his own Tennants and one of them a Smith his Officer that they give the reason of their Knowledge that they dwelt in the bounds which is not sufficient unless they had been periti and Conversant about the matter of Woods and the Buying and the Selling and the valuing of the same That some Witnesses for the Defender had given their Judgment upon oath as strongly and pregnantly as they though they be not so many So that the probation at best is but dubious and in dubiis minimum sequendum at the least the Lords have a latitude to found their Judgment upon the Testimonies of both cum temperamento and without adhering percisely to either The Lords Found nevertheless by plurality That they should have respect to what had been proven by the most part And accordingly Decerned D. 110. Rankin contra Skelmorlie and Dunlop eod die IN a double poinding at the instance of the Lord Melvil there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun The Lords preferred Skelmorly the first Arrester Though Rankin had obtained a Decreet to make forthcoming and had compleated his Diligence and alledged that an Arrestment is but an inchoate Diligence and doth not hinder any other Creditor to compleat and do more exact diligence by poinding or by a Decreet to make forthcoming which in Debts and in nominibus are equivalent The reason of the Decision was that Skelmorly had not only Arrested but had intented a pursuite before the Lords to make forthcoming before Rankin But Processes before the Lords being more tedious and the Pursuer not Master of Calling Rankin had taken advantage by obtaining a Decreet
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
Alexander Binnie and to do no deed in prejudice of his Succession She did thereafter Marry and Dispone to her Husband the said Tenements In a pursuit at the instance of her Brother against her and her Husband for his Interest upon the said Bond and for implement thereof The Lords Found that she with consent of her Husband ought to Resign Some of the Lords thought that the import of such obligments is only that the Granter should not alter such TailÈies in favours of other Heirs And that they are not restrained to sell or Dispone for onerous Causes if they should have occasion otherwise they should cease to be Fiars The very Essence of Fee and Propertie consisting in a liberty to Dispone It may be questioned how far the Husband may be lyable to his Wifes obligments before the Marriage For there being a Communion betwixt them only as to mobilia it may appear that he should only be lyable to Movable and Personal Debts Seing penes quem Emolumentum penes eundem Onus but this point was not Debated D. 137. Straquhan contra Morison Eod. die A pursuit for SpuilÈie being restricted to wrongous Intromission It was Alledged that the Defenders are only lyable for their intromission respective in so far as it should be proven that each of them had intromitted at least pro virili and conjunctly It was Replyed that the Defenders being conveened Ex delicto they are lyable in solidum as Correi being all accessorie to the wrong And the pursuit as it is Restricted is not for Intromission simply but wrongous Intromission And though the Pursuer by restricting the Pursuit as said is has precluded himself as to violent profits and juramentum in litem and other consequences of spuilÈie he has not prejudged himself as to that benefit that all who are accessory to the wrong should be lyable in solidum which the Law has introduced upon just ground seing it is impossible in such cases where diverse Persons do intromett to distinguish and prove their intromissions The Lords Found the Defenders lyable Conjunctly Wedderburn Sinclair Straquhan Alteri Lockhart Thoirs D. 138. Pollock contra Pollock Eod. die THe Lords having considered the Renunciation mentioned above 20 of Novem. 1667 Found that it being in favours of the second Marriage and in Effect an Assignation could not accresce to the Granter D. 139. Birnie contra _____ Eod. die MR Andrew Birnie having granted a Bond blank in the Creditors name to his Good-brother Short the Creditors name being thereafter filled up Mr Andrew Birnie suspended upon double poynding against him and another Creditor of Shorts who had thereafter arrested The Lords preferred the Person whose name was filled up In respect he had shown Mr. Andrew the Bond before the arrestment and desired him to satisfie the same though he had not made intimation by way of Instrument This Decision seemeth to justle with that of the 9. November 1665. Jamison contra Tealzifer D. 140. _____ and the Laird of Innes her Husband _____ contra _____ 21. Jan. 1668 THE Laird of Rosyth having provided his Daughter of the first Marriage with the Laird of Innes to 10000. Pounds at her age of Twentie years and there being no obligement for Annualrent The Lords in a Process at her instance for her aliment modified 600. Merks yearly Some were of opinion that the said sum being payable at the foresaid Term the Annualrent of the same should not have been modified for the time thereafter and that she should be in no worse case than if it had been payed D. 141. Shaw contra _____ Eod. die THE Lords Found That a Wife being provided in Lecto by her Husband her provision should be restricted and Sustained as to a Terce she being no otherwise provided before D. 142. Home contra Tailzifer Eod. die AN Exception of Improbation being proponed against a Writ and thereafter Tailzifer of Harycleugh being desired to abide at it he declared that he had gotten it as a true Evident and condescended upon the way he had gotten it and it being alledged that he ought to be positive Whether he would abide at it or not The Lords declared That after probation they would consider how far his using and abiding at the said Write should import against him and if he be in bona fide to use the same D. 143. Dowglas contra Lady Wamphray 22. Janu. 1668. THE Lady Wamphray being provided in an Annualrent out of Lands without respect to a Sors or Stock and being infeft It was Found that she ought to be lyable to Taxations and publick burdens being onera patrimonialia though the said Annualrent was payable to her alswel infeft as not infeft D. 144. Justice contra Stirling 23. Janu. 1668. IN the Case Justice and his Tutors contra Stirling and Cockburne her Husband a Bond being granted to a Husband and his Wife the longest liver and the Heirs betwixt them which FailÈieng to the Heirs of the longest liver And the wife having survived there being only one Child of the Marriage The Lords Found that the Fee of the said Bond belonged to the Husband as dignior persona And that the Child had Right thereto as Heir to him and that the Heirs of the Wife could have no Right after the Childs decease as Heirs of provision to the Child And that the Wife had not the Right of Fee which she pretended to be in suspence until it should be determined by the death of either who should be the last liver D. 145. The Town of Glasglow contra _____ Eod. die THE Town of Glasgow having a Right from the Bishop to the parsonage Teynds pursued a SpuilÈie It was Alledged for some of the Defenders that they possessed by Subtacks from Blantyre Tacksman It was Answered that Certification was granted against the principal Tack and that the Subtacks were void in consequence It was Replyed that the Defenders were not called to the Improbation and that they being in possession the Collusion or negligence of their Author cannot prejudge them The Lords upon a debate amongst themselves Thought that Sub-vassalls being in possession ought to be called in an Improbation against the Vassal their Author because they could not be miskenned being Heretable possessors But as to the Tennants bruiking Lands by tacks or Heretors bruiking by Subtacks their own Teynds They thought that it could not so well be known that they had Right and so were not parties necessary to be called And therefore before Answer they ordained to condescend upon the manner and quality of their possession and whether it was such as the Bishop could not but know Sinclair Lockhart alter Cuninghame D. 146. Simpson contra Adamson 24. January 1668. UPon Report it was Debated among the Lords whether a Decreet of poinding the Ground should interrupt prescription of an Annualrent right being only against the Tennants the Heretor not called Some were of the opinion that the Decreet being null nullum sortitur
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
for the Lady Lockhart and Lermonth D. 162. Lord Hattoun contra Paterson 22. Feb. 1672. THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie to Andrew Paterson and the Gift being assigned to the Laird of Aytoun by the said Andrew a decreet was thereupon obtained against the Representatives of the Earl of Dundie for his intromission with the Goods belonging to the Rebel whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle which was Disponed by the said Laird of Aytoun to the Earl of Argyle Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift pursued the the said Andrew Paterson before the Exchequer upon that ground That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Back-bonds and the Clerks are Discharged to give out the same otherwayes and nevertheless viis modis the said Andrew had surreptitiously gotten out the said Gift and ought to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel and of the Expences in passing the Gift he should denude himself in favours of the second Donator And that it should be declared that the said Gift should be affected with the said Bond as if it had been given ab initio And accordingly the Exchequer did decern and declared Whereupon the Thesaurer deput pursued a Reduction of the said Apprysing against Aytoun and the Earl of Argyl upon that reason viz. That the said Gift which is the ground thereof is restricted and qualified and that the said Andrew Paterson is fully satisfied of what is due to him It was Alledged for the Defenders that the Gift was pure and simple without any Back-bond and therefor the Assigney finding it was such and there being no Back-bond upon record was in bona fide to take a Right to the same And the said Decreet of Exchequer being supervenient and res inter alios acta could not be obtruded against a singular Successor but the Pursuer may have action against the Cedent The Lords Repelled the Alledgnce and Found that the Decreet and Back-bond do qualifie the Gift both as to the Donator and to his Assigney The said Decision appears very hard upon the grounds abovementioned and because Back-bonds are only personal obligements upon the Granters and do not qualifie Rights being extra Corpus Juris And his Majestie in granting Gifts of Escheat single or Liferent is in no other case than other Superiors as Lords of Regality having Right to single Escheats whose Gifts cannot be qualified in prejudice of a singular Successor but by provisions contained in the Body of the Right and the import of Back-bonds is only that the Granters being satisfied should be comptable for the superplus but there is not thereby any tye upon them not to dispose upon the same being comptable for the pryce or value of that which they dispone Colingtoun Reporter Having heard the cause at the side Barr. D. 163. Blair contra Blair 23. Feb. 1672. WItnesses being examined before Answer ex Officio It was desired that seing ex facto oritur Jus and the Lords being unclear to decide in Jure before the point of fact were cleared by probation and the point of Law and ground of their Decision is to arise out of the probation and therefore they may see and debate upon the same which was refused seing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi MckenÈie alteri Lockhart c. D. 164. Neilson contra Elizabeth Arthur Eod. die ELizabeth Arthur being charged upon a Bond granted by her self suspended upon that reason that she was cled with a Husband the time of the granting thereof It was Answered she had a peculium and Estate setled upon her by her Father in these Terms that her Husband should have no interest therein but that it should be manadged by advice of the Freinds named by him for the behoofe of her and her Children And that the Sum charged for was borrowed and employed for her use The Lords Found the Letters orderly proceeded D. 165. Lady Lugton contra Hepburn and Creichton 13. June 1672. A Decreet being recovered before the Commissars of Edinburgh at the instance of the Lady Lugtoun against her Grandchild _____ Hepburne Daughter to the deceast Laird of Aderstoun Modifying 400. Merks Yearly for Aliment of the said _____ Hepburne by the space of 13. Years since her Birth The Lords in a Reduction and Suspension of the said Decreet modified the Sum thereincontained being 3500 Merks to the Tenth part of the Sum of 30000 Merks which was mentioned in the said Decreet and considered by the Commissars as the Estate belonging to the said Hepburne So that in respect and upon supposition of the same they modified the said Aliment And by reason the said Estate was intricate and litigious and possibly could not be recovered The Lords ordained the Pursuer to Assign the Tenth part of the said Estate not exceeding 3000 Merks which was done upon that consideration that the Aliment was modified in respect of the said interest And if ex eventu it should be Found that it could not be recovered and that she had no Estate it were unjust that she should be Lyable personally her Grand-mother being obliged at least presumed to entertain her ex pietate materna if she had no Estate of her own Monro Clerk D. 166. Grott contra Sutherland 14. June 1672. TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part The Lords sustained Action against one of them in solidum for implement of the Obligements in the Contract being facti which is indivisible and they being socii exercitores so that the Fraught might have been payed to one of them and eadem ratione any one of them is Lyable and may be pursued in solidum Gibson Clerk D. 167. _____ contra _____ eod die THE Lords Found That a Declarator of Right which ought to be upon 21 Dayes being priviledged by a Bill which is periculo petentis should not be sustained being execute upon a shorter time And Ordained that the Writers to the Signet should nor insert in Bills and Summonds a priviledge dispenceing with the Law and the solennes induciae thereby introduced in favours of Defenders under the paine of 100 Merks for the first fault and deprivation for the second except in cases which by the Law are priviledged and named The President Advocate and others of their number to meet and consider what these should be D. 168. Henderson contra Henderson 20. June 1672. A Bond being produced to satisfy the production in an Improbation The Lords without further probation did Improve and Decern quoad the Defender in respect he refused to abide by the Truth of the same Gibson Clerk D. 169. Gray of Haystoun contra Forbes and Lindsay eod die WIlliam Gray of Haystoun having granted
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
cross with certification pro confesso seing no person could be holden as confest who is not personally apprehended Mr. Thomas Hay Clerk D. 244. Duke of Monmouth contra Earl of Tweeddale eod die THere being a Transaction betwixt the Duke and Dutchess of Monmouth and the Earl of Tweeddale whereupon a Discharge was granted by the said Duke and Dutchess to the said Earl with consent of their Curators which was also superscribed by his Majesty taking burden for the Duke and Dutchess with an obligement that they should ratify after Majority The said Duke and his Lady pursued a Reduction of the said Discharge upon a reason of Minority and Lesion It was Alledged That all Parties haveing Interest were not called viz. The Officers of State for His Majesties Interest seing His Majesty was so much concerned that if any thing were evicted from the Defender His Majesty would be Lyable for the same The Lords Repelled the Defence Without prejudice to His Majesties Advocat to appear for his interest if he thought fit Stathurd Reporter Gibson Clerk D. 245. Irving contra Caruther 6. February 1675. THE Summonds being referred to the Defenders Oath who having declared that as to what was referred to his Oath he could not remember nor be positive It was debated amongst the Lords whether the Oath did prove or not Or if the Defender should be holden as Confest In respect he was to declare de facto proprio recenti and in such a case the pretence of non memini is neither excuseable nor relevant And so it was Found by the Lords tho some were of the Opinion that a person compearing and declareing upon Oath that to his knowledge he did not remember could not holden as confest seing he cannot be said to be contumacious and to want Memory is not a fault And after a party has declared it is only to be considered whether the Oath proves or not Mr. John Hay Clerk D. 246. Burnet contra McClellane eod die A Father being pursued as Behaving himself as Heir to his Son and Litiscontestation being made and Witnesses adduced the time of the Adviseing It was Alledged That the Father could not represent his Son as behaving because the Defunct had a Brother who was produced and at the Barr Whereto It was Answered That in hoc statu the Defence was not receivable and it could not be said to be noviter veniens seing the Father could not be ignorant that he had another Son The Lords in respect of the State of the Process would not receive the Defence tho verified instanter unless the Son would suscipere judicium and be content that the Process should proceed as against him which appears to be hard seing that which was to be proven was not only that the Defender intrometted but that he was appearand Heir and in casu notorio no probation was to be respected to the contrary and tho the Father could not but know that he had a Son yet he might be ignorant that his Son would be preferred to himself as to the Succession of his own Son and in damno vitando ignorantia Juris is excusable Mr. J. Hay Clerk D. 247. _____ contra Captain Martine and others 9. February 1675. A Ship being taken by a Caper and being found by a Decreet of the Admiral to be a Prize Thereafter upon a Decreet of the Lords reductive of that of the Admiral being found to be a free Ship the Stranger did urge payment against the Captain and the Owners of the value And It was Alledged That the Decreet of the Lords Ordaining Restitution was against them as correi debendi and not in solidum and that they are only lyable for their own parts Whereunto It was Answered That though it was found That the Captain had probable Reasons for bringing up the said Ship yet upon the matter the Stranger was wronged by the taking of his Ship and in casu delicti by spuilÈie or wrongous intromission or otherways Decreets against the Persons therein contained are construed to be in solidum and the Stranger cannot know what the respective Interests and Parts of the Owners are and ought not distrahi and to be put to Process against every one of them for declaring of their Parts The Lords Found That they were lyable in solidum Reserving their Debate and Relief amongst themselves as to their several Interests and Proportions Lord Forret Reporter Gibson Clerk D. 248. Burd contra Reid eod die THE Lords having formerly Found That the Cedents of Personal Bonds are lyable only to warrand debitorem esse but not esse locupletem It was pretended That there being a Question concerning Warrandice of a Right of Annualrent out of Land the same should be warranded no other way But The Lords Found That the Warrandice of Lands or of such real Rights upon or out of Land are absolute unless they be expresly limited and qualified by their Right Hamilton Clerk D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod die SIR Robert Stewart in Ireland and his Son being Debitors by Bond in the Sum of 800. lib. starl to the deceast James Sanderson which Bond being conceived in the Form of English Bonds did not bear Annualrent The said James did assign the said Bond in Favours of Ronald Graham in trust and to his own behoof upon a Back-bond and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants as to two Parts to the said Ker and the third part to Broun Sir George Maxuel of Pollock being Trustee and acting in name of the said Stewarts did grant a Bond to the said Ker and Broun making mention of the said Bond granted by the Stewarts and of the Assignation made by the said James Sanderson to the said Broun and Ker and that after Compt and Reckoning there was only resting of the said Sum 300. lib. sterl which the said Sir George in name of the said Stewarts is obliged to pay within three Moneths after that Stewarts Bond should be delivered to him with an Assignation or Discharge The said James Ker being deceased his Executors did intent Action against the said Sir George Maxuel for his part of the said Sum viz. 200. lib. In this Process William Vetoh did compear for his Interest and did alledge that the Sum in question due by Sir George Maxuel did belong to him having fallen under the Rebellion of the said James Sanderson and the Gift of his Escheat first Gifted to David Rodger fra whom the said William had right and thereafter to the said William himself and tho the said Bond granted by Sir George Maxuel was granted to the said Ker and Broun yet it was granted for the same Sums that were due by the said Stewarts to the said Sanderson as appears by the Bond granted by the said Sir George Maxuel so that the foresaid Sum due to Sanderson and the Bond for the same having as said is fallen
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâ—ris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
the said Disposition and yet these in whose favours the Disposition is made may choose Curators who will have the Administration of any other Estate belonging to them But if they be Puberes their persons are free and neither of the said Administrators can pretend to the keeping of them quia curator datur rebus D. 317. McKneish contra Bryce and her Husband eod die A Woman being pursued upon a Bond and having alledged that it it was Null because she was vestita viro The Reply that she promised payment after her Husbands decease tho the Sum was only 100 lib. Scots was Found not to be probable by Witnesses Glendoich Reporter D. 318. _____ contra _____ 16. Decem. 1675. THE Lords Found That a Merchant being in use to furnish diverse Years That a current accompt did not prescrive Tho some were of Opinion that the Act of Parliament bearing no distinction the Articles of Accompt ought to prescrive from their Respective Dates Seing otherways the Act of Parliament may be eluded both in the case of Compts and other cases which prescrive by the Act. Nevoy Reporter D. 319. Wilson contra Deans 17. December 1675. IT was Found That a Woman keeping a Shop and Traffiqueing as a Merchant with the knowledge of her Husband he is Lyable for Debts Contracted by her upon the account of her Traffique Actione institoria Forret Reporter D. 320. Thomson contra Mr. James Eleis eod die THE Lords Found In the case of a Right of Moveables granted by a Husband to his Wife with the burden of his Debts and a Provision that they shall be affected with the same That the property of the Goods is settled in the person of the Wife so that she may dispose of the same And these who acquire Right thereto are not concerned to enquire whether the price be converted to the use and satisfaction of the Creditors who will have a personal Action against the Wife So that she will in effect be in the case of an Executor and Trustee But if the Goods so affected be extant the Creditors of the Husband will be preferable to the Wifes proper Creditors her Right being fiduciary as said is and to the use foresaid Praesentia Vide supra 9. December 1675. The Creditors of James Mastertoun D. 321. _____ contra _____ 21. Decem. 1675. A Father having made a Disposition in favours of his Son reserving his own Liferent with power likewayes to dispose of what he had provided did appoint certain Persons as Curators and to have Administration of what he had provided dureing not only the Pupillarity but the Minority of his Son and nevertheless his Son having chosen Curators after his Pupillarity there was a Competition betwixt the said Curators and the Person appointed by the Father to Administrate The Lords Found That the Son as to his Person was not in potestate of either of the said competing Curators seing Curator non datur personae sed rebus and as to any other Estate belonging to the Minor any other way than by the Provision of his Father the same was to be governed by the advice of the Curator named and chosen by himself But the Lords demurred as to that Question viz. Whether the Father might affect the Right granted by himself with the Quality and Provision foresaid that the Person named by him should have administration of the Estate disponed by him And some were of the Opinion that there is a difference betwixt a Stranger and a Father in respect Strangers are not obliged to give and what they are pleased to give they may affect and qualifie their Right thereof sub modo and with what Provisions they think fit whereas a Father has a Duty lying upon him in nature to provide his Children and by the Law he may name Tutors to his Children but after Pupillarity he cannot put them under the power of Curators without their own consent and if this practice should be allowed there should hereafter be no election of Curators They did also consider that the Right granted by the Father was in effect donatio mortis causa seing the Father retained possession and a power to revock And it seemed that as the Father could not in Testament make Curators so he could not do the same by a Legacy or any such Donation mortis causa D. 322. Mr. of Rae contra Dumbyth 8 February 1676. IN a SpuilÈie at the Instance of the Master of Rae against Dumbyth It was Alledged The Pursute was prescrived because not intented within 3. Years so that it could not be sustained to give the Pursuer Juramentum in litem and violent Profits It was Replyed for the Pursuer That long within the 3. Years a pursute for Depredation had been intented before the Justice Which being of a Higher Nature and including Virtually and in consequence the conclusion of Restitution and Profits was a sufficient Interruption as to this pursute The Lords notwithstanding Found the pursute prescrived Newbyth Reporter Mr. Thomas Hay Clerk D. 323. Riccarton Drummond contra _____ eod die THE Lords Found That a special Service in an Annualrent doth give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow and includes a General Retour as Homo doth include Animal Newbyth Reporter Hamilton Clerk D. 324. _____ contra _____ eod die THE Lords Found That when Creditors did compear in Adjudications not being called they ought to be admitted with that quality that since the course of the Adjudger is stopt by their Compearance the Adjudger shall be in the same case as to any Adjudication at their instance as if both Adjudications were within year and day D. 325. Colledge of Aberdeen contra _____ eod die THE Colledge of Aberdeen having Right by Act of Parliament to the Vacant Stipends within the Bounds thereinmentioned pursues for a Vacant Stipend the Bishop of Ross compeared and alledged That the Kirk was his Mensal Kirk so that there could be no Vacant Stipend The Lords Found That the Colledge should have Right to any Stipend that belonged to the former Ministers either modified to them or of which they have been in Possession and that it was consistent that the Kirk should be Mensal and yet the Minister should have a Stipend and that the Pursuers should have Right thereto being Vacant Craigie Reporter D. 326. _____ contra _____ 9. February 1676. IN a Suspension a Reason of Compensation is lybelled viz. That the Charger was debitor to the Suspender upon account of a Fraught and it was offered to be proven by the Chargers Oath that he was so Debitor and by Witnesses what the Fraught extended to The Lords Found the Letters orderly proceeded and that Compensation was de liquido in liquidum and not de liquidando by Witnesses D. 327. _____ contra _____ eod die A Pursute was intented for a Sum of Money which the Defender was obliged by his Promise to pay in case he should be married having gotten
should desire his Superior to offer him a Person that he might marry or to consent that he should marry such a Person as he thought fit for him and the Superior should refuse both it were hard that notwithstanding the Vassal should be lyable to pay the Avail of his marriage The Lords nevertheless Found That the single Avail of Marriage is not penal Actores Lockheart and Hamilton alteri Cuningham Mr. John Hay Clerk In praesentia Vide infra 23. January 1677. inter eosdem D. 416. Mitchelson contra Mitchelson 4. January 1677. A Younger Brother being served before the Baillies of Kirkcaldie Heir of Line to the immediate elder Brother Thereafter the eldest Brother did desire to be served Heir of Conquest to the same Person and the Baillies not being clear to proceed in respect of the former Service unless it had been reduced The Lords Thought That upon their Refusal the Elder Brother may Advocate for Iniquity and that the Brieves may be served before the Macers and that the Eldest Brother being wronged by the foresaid Service to which he was not called so that it was res inter alios acta he ought not to be prejudged thereby nor put to the trouble and Charges of a Reduction Gibson Clerk D. 417. Earl of Glencairn contra Brisbains 5. January 1677. FRancis Freeland of that Ilk having disponed to John Mcknair and Robert Hamilton irredeemably and they thereafter having disponed the same with consent of the said Francis to John Brisbain And the said John having granted a Reversion to the said Francis his Heirs of his own Body allanerly for payment of the Sum of 8000 merks and what farder Sums should be debursed for improving the Lands building or repairing the Houses with Annualrent frae the Debursements upon the said John Freeland his own Declaration and that after the first Term after the said Francis his decease The Earl of Glencairn Creditor to the said Francis Freeland alledging that the said Reversion was granted by Fraud and Contryvance and in prejudice of him and Lawful Creditors and that the said Reversion was granted in manner foresaid not in favours of his Debitor but his Heirs for eludeing their Execution Pursued a Reduction of the said Disposition made in favours of Hamilton and Mcnaire and a Declarator that Brisbaines Right should fall in consequence and that it should be lawful to him to comprise the said Reversion and to use an Order as if it had been granted to the said Francis Freeland himself The Lords Thought That if the Price were not adequate which was to be tryed the Conclusions foresaid should be sustained Thesaurer-depute Reporter Gibson Clerk D. 418. Creditors of Mouswel contra The Lady and Children 6. January 1677. JAmes Douglas of Mouswel by Contract of Marriage betwixt his Eldest Son James Douglas and _____ Lawrie did dispone to his Son the Fee of his Estate reserving his own Liferent and with a Provision to be contained in the Infeftment That it should be lawful to him to take on and burden the Estate with the Sum of 18000 merks for the Provision of his other Children and for doing his other Affairs And accordingly the said James did provide to eight Children 9000. merks out of the said Estate by a Bond granted within a year after the said Marriage and Infeftment thereupon Both the Father and the Son the Fiar being deceased and the Son having left only one Son of the Marriage an Infant there followed a Contract â—etwixt Agnes Rome Grandmother to the Child and Janet Lawrie the Mother and certain Friends of the Family whereby it was agreed that the Grandmother should quite 200 merks of her Liferent yearly and the Mother 400 merks of her Liferent and that the Grandmother should Confirm her Husbands Testament for payment of his Debts and for the superplus of the Debt the Friends should undertake the same and upon payment having taken Right thereto should superceed personal Execution until the Child were major the Annualrents being in the mean time payed by the Grandmother as Tutrix to her Grandchild The Grandchild having deceased while he was yet Infant both the Creditors and the Friends and the Relict did take a course to affect the Estate by Comprysings and upon their Infeftments and Rights having pursued the Tennents so that they were forced to raise a multiple Poinding It was Alledged for the Creditors That the Grandmother her Liferent ought to be restricted conform to the said Contract whereby she had discharged the said 200. merks yearly Whereunto It being Answered That res devenerat in alium casum and that the said Restriction was in favours of her Grandchild and for the standing of the Family and in contemplation of the Undertaking and Obligement foresaid of the Friends which they had not done and cessante causa cessat effectus and the Estate being altogether ruined she ought to be in her own place And albeit it was thereto Replyed by the Creditors That whatever might be pretended to be the impulsive Cause yet the said Restriction being once granted doth continue notwithstanding of the pretence foresaid seing there is no resolutive Clause or Provision that the Case above-mentioned falling out the Grand-mother should be in her own place but on the contrare it appears by the Contract that the Death of the Child was then under her consideration In respect it is provided expresly that if the Child should die the Restriction of the Mothers Life-rent should cease and she should be in her own place and so the Provision foresaid being only in favours of the Mother and not of the Grand-mother Exceptio firmat Regulam in non exceptis It being considered likeways there was not the same reason for the Grand-mother In respect by the decease of the Child the Mothers Interest in the Estate did altogether cease whereas the Heir who did succeed to the Child was the Grand-mothers own Son And as to the pretence that the Friends had not fulfilled their part of the Contract It was Answered that the Contract being in effect in favours of the Family both the Relict and the Creditors were thereby obliged and might yet be urged to fulfil their obligements And tho they should both fail the Family could not be prejudged and that the Freinds accordingly as they were obliged they had taken course with the Debts and tho it was pretended that they had not done it debito tempore the said pretence was of no moment seing no time is limited by the Contract Nevertheless the Lords Reponed the Relict against the said Restriction In the same Cause There being a Competition betwixt some of the Creditors whose Debts were Contracted by the Grand-father Agnes Rom's Husband before his Sons Contract of Marriage and betwixt the Children who were Infeft as said is upon the Bond of Provision granted by their Father conform to the faculty foresaid It was Alledged for the Creditors That they ought to be preferred In respect that upon Bonds of
Corroboration granted by the Son the Fiar they had Comprysed and were Infeft by publick Infeftments at least had charged the Superior So that their Right being publick and for a true Debt anterior to the Childrens Provision they were preferable to the Children their Infeftment being base The Lords Found That the Children should be preferred In respect the Comprysings were against the Son and the Comprysers could be in no better Case than the Son himself whose Right was affected with the said faculty in favours of the Children So that neither he nor any having Right from him could question the Right granted by vertue of and conform to the said Faculty This Decision being by plurality seemed hard to some of the Lords who did consider that the foresaid Faculty was not only in behalf of the Children but of supervenient Creditors if the Father had thereafter Contracted any Debt and if the Father had given surety to the said Supervenient Creditors by base Infeftments and if his Anterior Creditors before the said Contract had comprysed and had been Infeft they would have been preferred to the said posterior Creditors having only base Rights and multo magis to the Children They considered also That the Estate being by the said Contract Disponed simply to the Son with a Reservation only of the Fathers Liferent and the said Faculty and the Son not being obliged to pay the Fathers Debts by the said Contract if there had been 18000 Merks of Debt anterior to the Contract Anterior Creditors might have pursued the Son for the same not only because he was Appearand Heir and Successor Titulo Lucrativo but because he was obliged by the Contract at least his Estate burdened for the said Sum And the Anterior Creditors might either have taken that course or might have Comprysed the Interest competent to the Father by the said Faculty And seing the Son might have been forced in manner foresaid to satisfy the said Creditors he might have granted Bonds of Corroboration whereupon they might have Comprysed and having comprysed and having gotten publick Rights they are preferable to the base Right of the Children In the same Cause The Creditors did alledge that they ought to be preferred to the Children because their Provision was after their Debt and was without an Onerous Cause And nevertheless the Lords Found the Defence for the Children Relevant viz. That their Father the time of the granting of the said Bonâ— for their Provision had a sufficient Estate besides out of which the Creditors might have been satisfied This Decision being also by the Major part seemed hard to others who thought that a Debitor could do no Deed in prejudice of his Creditors without an Onerous Cause And tho the Father might be looked upon the time of the granting of Provisions to Children as in a good condition and therefore the Creditors to be secure and needed not do Diligence yet if thereafter he should become insolvent the loss ought to be upon the Children and not the Creditors And that it being a principle That a Debitor can do nothing in prejudice of his Creditor without an Onerous Cause It is certainly both Fraud and prejudice that he should not pay his Debt but should give away to his Children that part of his Estate which the Creditors might have affected And Inhibitions being only in these terms That the Party Inhibite should do no Deed in defraud of the Creditor It might be pretended by the same Reason in Reductions ex capite Inhibitionis that the Party Inhibite did nothing in defraud or prejudice of the Pursuer In respect the time of the granting the Bond or Right craved to be reduced he had Effects and sufficiency of Estate beside Lockheart c. for Queensberry and other Creditors Cuninghame Anderson and MckenÈie for the Children and Relict Gibson Clerk In praesentia D. 419. Stewart of Castlemilk contra Sir John Whitefoord 10. January 1677. SIR Archibald Stewart of Castlemilk having pursued a Reduction of a Disposition of the Lands of Coats made by James Stewart of Minto in favours of Sir John Whitefoord ex capite metus In swa far as the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time and thereafter having a Caption against him had detained him Prisoner and had caused transport and convey him in that condition from diverse places in the night Season and by his Servants had threatned him with long Imprisonment and in end had prevailed with him to dispone to him the saids Lands being eight Chalders Victual of Rent and where there was a Coal of 100. lib. sterl of Rent upon an Obligement only to pay him an yearly Annuity of 400. merks In which process the said Sir John and Duke Hamilton who had thereafter acquired the said Lands from the said Sir John did compear and propone the Defences following 1. That the foresaid Qualifications of Force were not Relevant to import metus qui potest cadere in Constantem virum being neither mortis nor Cruciatus nor so circumstantiate as is required of the Law for founding the said Action And 2 That albeit metus were relevantly qualified the foresaid Deed cannot be questioned upon pretence of the same unless the said James Stewart had been lesed or damnified by the same Seing it appears by the Title quod metus causa c. A Reduction and Restitution upon that head is not competent ubi non est damnum nihil abest as is clear by diverse Texts in the case of a Creditor useing force to get what is unquestionably due to him and in this case the said James had no prejudice in respect he was obliged by an antecedent Minute to dispon the said Lands so that the said Disposition was but for implement of the said Minute which the said Sir John did give back to be cancelled by Minto when he got the said Disposition And 3. It was offered to be proven that after the said James was at liberty the said Disposition was granted by him The Lords Found That the Libel and Qualifications of metus and Force were relevant and yet in respect the Defenders were so positive as to their Alledgance that the Disponer was at liberty when he granted the said Right they allowed a conjunct Probation concerning the said Qualifications of Force and the condition the Disponer was in for the time and the way of granting the said Right whether he was under Restraint and the Impression of Fear or in Freedom Or whether the samen was granted by him freely and voluntarly As to the said other Defence that there was no damnum the Lords repelled the same and would not allow that point of Fact to be tryed whether or not there were a former Minute for Implement of which the said Right was granted And whether it was given back for and the time of the granting of the said Disposition Some of the Lords were of the Opinion That
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
he was in the said process It were inconsistent that his Tennent should have the benefite of a Possessory Judgement and not himself In praesentia D. 394. Rutherford contra Weddel 5. December 1676. THE Lords In a Suspension at the instance of a Bankrupt who was Prisoner did allow him to come out without the habite Because It was represented that the Debt was for the most part not contracted by himself but by his Father Albeit some of the Lords were of the Opinion that the Act of Sederunt bearing no distinction and being made upon good consideration and conform to the practice of all other Nations That Bankrupts should be known by a habite to be persons that deserved no Trust and that others may be affrighted from contracting or under-going Debts which they are not able to pay And that the pretence foresaid was frivolous it not being presumable that a person would be Heir and become Lyable to Debts that he had not Contracted unless there were Effects and sufficiency of Estate to pay the same And if such pretences should be allowed the Law would be altogether elusory Gosford Reporter Mr. Thomas Hay Clerk D. 395. The Town of Glasgow contra Greenock 7. December 1676. THE Town of Glasgow having intented a Declarator against the Laird of Greenock containing these Conclusions viz. That it should not be lawful to Greenock or his Burgh of Barony to import any Goods from Abroad which by the late Regulation and Act of Parliament concerning the priviledges of Burghs Royal being the 5. Act of the 3d. Session of his Majesties Second Parliament belongeth to the Royal Burghs and are to be imported by them privative and in special Wine Brandy and Salt 2. That if they should be found to contraveen the said Act of Parliament that the unfree Goods deprehended should not only be Escheat but their whole Goods conform to former Laws and Acts of Parliament against unfree Men. It was Alledged for the Defenders That at least they ought to be in the same case as Strangers and Unfree-men of Forreign Nations who may import without limitation making Offer to the Royal Burghs and if they do not buy the same from them being obliged to Sell them in whole sale and at the price to be limited and appointed by the Burgh where Offer is made and that the Burghs of Barony had been in use of importing as Strangers the same being qualified as said is And the said Custom was not contrary to Law but conform to diverse Acts of Parliament and in special the 100 Act of K. Ja. 5th his _____ Parliament bearing that if any Free-man or other Scots-man dwelling within this Realm should bring home Wines Salt or Timber That the Magistrates of Burghs where the same is entered should set a price upon the same which imports that Unfree-men may import the same The Lords Found That by the said late Act of Parliament The matter of Trade is so regulated That as the Burghs of Barony their priviledges to import Goods and Commodities that they could not import before are settled upon them and on the other part Royal Burghs are secured from the encroachment of Burghs of Barony So that they cannot import but the particulars allowed to them by the said Act Therefore that upon no pretence the Burghs of Barony and Unfree-Men can import any other Goods and that they are not to have the Liberty that Strangers have Seing Strangers are allowed the Liberty of Trade and Commerce being qualified as said is And if the same were denyed there would be no Trade betwixt our Merchants and them Whereas the Liberty of Trade and to import Forreign Commodities is only lodged and settled upon Royal Burrows upon good Considerations and intuitu of the same they are Lyable to a 6th part of Taxations and other publick Burdens 2. It was Found That albeit in the late Act of Parliament there be not mention of Salt as one of the Commodities allowed to the Royal Burrows and contained in the specification that the same does only belong to the Royal Burrows Seing they are founded as to all Commodities not expresly allowed by the said Act to Burghs of Barony and Regality in Jure And the Burghs of Barony are excluded by the said Act as to all others except these allowed to them expresly by the said Act and come under that general viz. Such as are necessary for Tillage or Building or for the use of their Manufacture And whereas it was pretended by the Defenders that Salt is necessary for the curing of their Fishes The Lords Found That Manufacture intended by the Acts of Parliament is only to be understood of Works erected by Companies or others for making of Cloath or such like about which many poor People are Employed and Entertained And tho there be skill in cureing Herring they are not a Manufacture but a Native Commodity without any alteration of the form and only qualified by the cureing of the same And that upon that pretence the Defenders ought not to be allowed to import Salt But was Recommended to some of the Lords being also upon the Council to move that a course might be taken for Regulateing the price of Salt that it be not Arbitrary to the Royal Burrowes to sell the same at such Rates as the Burghs of Barony cannot without prejudice buy the same So that they may be forced to desist from making or exporting Herring The Lords Found That the said Act having defined the pain to be the Escheat of the Goods deprehended And not the Escheat of the Contraveeners whole Goods And that as to Goods not deprehended the pain ought not to be greater And that these who import unlawful Goods contrare to the Act tho they be not deprehended may be pursued for the value of the same and no farder Some of the Lords were of another Opinion as to this Point and thought that seing the late Act of Parliament doth mention only the case of unlawful Goods deprehended and doth regulate the former Practice as to the attaching and affecting of the same and it is inconsistent that both the Goods deprehended should be escheat and likeways the Contraveeners other Goods should be escheat That therefore the former Laws are still in vigour Actor Lockheart c. alteri Cuningham In praesentia D. 396. Marshal contra Holmes 12 December 1676. AN Advocation being produced after the Judge had decerned but before he had cleared and dictate the minute of the Decreet which he did upon the Bench immediatly after production of the Advocation The Lords Found the Decreet Null as being spreto mandato But in respect of the Circumstances and that the Judge had decerned before as said is they turned it in a Lybel Thesaurer-deput Reporter Gibson Clerk D. 397. Durham contra Durham eod die SIR Alexander Durham having upon Death-bed given Bond to the Lord Clermount for 20000. merks and at the same time having ordained his Nevoy Mr. Francis Durham his
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same