served without delay otherways they could never be served there being ever possibility of the Issue of Men. Yet if they should not be entered before the superveniency even though but in the Womb the same would take place but if the Ascendent be actually entered the Law affordeth no remedy Reversion or Restitution Neither can this difficultie be a Reason against the Succcession ofAscendents because the question is only betwixt them and their own Children and nothing operats in favour of their Brothers and Sisters or their Descendents As to the other Case in the instance proposed it seems the Succeession ought to have depended till the event of the lawful Issue of Marion Weir First because that had a determined time by the Course of Nature viz. the fifteth or fiftieth two year of her Age at which time the Issue of Women is repute extinct which is not so in the case of Men. Secondly in Tailzies upon Contracts and for onerous causes respect is to be had to the meaning and interest of the Parties contracters and in dubio pars mitior est sequenda And that sense is to be imbraced by which the provisions can have some effect and not that by which they can have none Whereby it may seem that it was Blackwood's meaning that the Succession of his own Natural Daughter should be substitute in the second member to the Heirs betwixt the Major and her and that while these were possibe his Heirs should have no place Otherways the second membet had been elusory For if by sailling the Heirs of the Major with the said Marion at the time of the said Major's Decease Marions Heirs by another lawful Husband should take place her other Heirs could never take place For she could not have another lawful Husband at the time of the Majors her first Husband's Death Yet the Reasons on the contrary are no lesse pregnant and that in this Case as in the Case of Heirs ascendent the Heirs nearest at the time of the Feer's Death should have Rights immediatly to Succeed because the Fee necessarly must belong to some Person and it cannot hang in the Air on a future possibility Which is a principle whereof mention and use hath been made frequently before Secondly if that were the meaning then at the time of the Major's Death the Lands were truely nullius and so as caduciary behoved to sall to the KING as ultimus Haeres But if it had been so exprest That no place should be to the Heirs of the Major's other Heirs till there were no possibility of Heirs of Marion Weir the defficulty seems the same that the Fee should be pendent and nullius It may be answered That even in that other Case the Major's other Heirs would succeed notwithstanding that provision which doth but resolve in aPersonalObligation to those Heirs to forebear Yet they were Heirs and if contrary the provision they should enter it would give interest to the Heirs of Marion Weir to compel the Major's Heirs having entered to denude themselves in their favour But there was no such thing in this Case And as to the Reasons upon the contrary though it may seem Black-wood's interest that the Heirs of his Natural Daughter should be in the second Place yet non fuit habilis modus to make the Fee pendent and nullius But to that which is the main Reason Otherways the second member behoved to be elusory it is answerd That it is not elusory because the most ordinary and hoped Case was That there should have been Heirs betwixt the Major and Marion who if they had died without Issue the Lands would have fallen to Marions Heirs by another lawful Husband and not to the Major's other Heirs So that the case which fell out that there was no Children procreat betwixt the Major and Marion was not feared and so not provided for as it oft-times fares in such cases Therefore we conceive it more probable that in all cases that Person who at the time of the Defunct's Death is in being born or unborn may be Heir and immediately enter so soon as by the birth it appears who may be Served There hath a later Case occurred and been determined on that occasion The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body Which failling to the eldest Heir Female without Division Which failling to the second Son of the Earl of Rothess Which failling to the second Son of the Lord Melvil who had Married the Earl of Levens Sister Which failling to the second Son of the Earl of Weemes who had married his Mother Leven left three Daughters after him who died all un-entered Rothess having no second Son David Melvil second Son to the Lord Melvil took a Brieve out of the Chancery to serve himself Heir of Tailzie to the Earl of Leven The Earl of Rothess took a Gift of the Non-entry in the name of Sr. William Bruce who raised an Advocation of the Brieve with a Declarator That while there was no hope of a second Son of the Earl of Rothess's Body David Melvil nor no Son of a subsequent Branch could be entered Or declaring That the Lands were in Non-entrie Both members of the said Declarator the Lords did sustain and stopped the Service albeit many inconveniences were represented thence arising As that there could be no active Title for pursuing the Rights of the Familie or for receiving Vassals nor any Accesse to the Estate passivè by Creditors But the Lords did reserve to the special Declarator how far the Non-entry would reach whether to the retoured Duties only or to the full Rents But many of the Lordswerc of opinion that David Melvil should enter as Heir of Tilzie Yet so that if the Chancelor had a second Son he or his Issue would succeed as Heir of Tailzie to David Melvil and neither his own Heirs of Line nor the Earl of Weemes's second Son Because at the time of David Melvils Death the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son as being of a prior Branch of the Tailzie Feb. 22. 1677. Sr. William Bruce contra David Melvil But the Lords found that the Non-entrie by the special Declarator could not reach to the full Rents but only to the Retoured Duety Seing the apparent Heir was neither in culpa nor mora Which doth only infer the full Duties And therefore found the Donatar had right to the retoured Duties and that the remainder continued in haereditate jacente to be managed by the Lord Malvil as Curator datus bonis of the Estate of Leven by the King having power to manage the Affairs of that Estate as a Tutor or as if an Heir had been entred July 24. 1677. inter eosdem 51. It cometh oft-times to pass that through the unclear conception of Clauses of Provision it becomes dubious who is thereby constitut Feer and who Liferenter as is ordinary when Sums of
of Jurisdiction which the Doctors acknowledge but say that it is introduced by the Law against the Nature of this Contract But they should rather say that the power of sub-committing in extrajudicials is so introduced It is true the Reasons foresaid fail in some cases as if the Mandat be of a Nature so Common that there is no distinction of the fitness of persons as Precepts of Seasine which are therefore directed blank that any persons Name indifferently may be filled up Or if the Mandat be so general that it cannot be all performed by one 35. It is also consequent from the Nature of this Contract that it is Ambulatory and Revockable at the pleasure of the Mandator even though it bear a definit Term because that being introduced in favours of the Mandator it cannot hinder him cuique licet juri pro se introducto renunciare which holdeth not when the Mandat is partly to the Mandators own behove for then the interest not being wholly the Mandatars he cannot alter the time agreed upon without consent of the Mandatar Yea if the Mandat be wholly to the behove of the Mandatar it may and frequently is Irrevockable and containeth a Clause de rato as is ordinary in Assignations and Procuratories of Resignation and Precepts of Seasine bearing them to be an Irrevockable Power and Warrand 36. The Obligation arising from Mandat is chiefly upon the part of the Mandatar to perform his undertaking wherein he is oblieged to follow the Tenor of his Commission in forma specifica in so far as it is special and express wherein if he transgresse some of the ancient Lawers denyed him repetition of his expences not only as to the excrescence above his Commission but for all as having received Commission to buy such a Field for one thousand Crowns he had bought it for one thousand two hundred he should have Repetition of nothing But Proculus thought that he should have Action for the part in the Commission which as the more benign opinion Justinian followeth l. sed proculus 4. ff mandati where the Mandat is not special it must be performed secundum arbitrium boni viri 37. As to the Diligence whereunto Mandatars are oblieged the Doctors are of divers opinions the Law inclineth most that Mandatars are oblieged for the exactest Diligence and for the lightest Fault But by the Nature of the Contract Mandatars seing their undertakings are gratuitous they ought to be but lyable for such Diligence as they use in their own Affairs and the Mandatar ought to impute it to himself that he made not choice of a more diligent person which our Custome followeth Nicol. Mandats David Crawford contra Katharine Alexander And a Commission to receive Money abroad was found to infer no Diligence Earl of Weims contra Sr. William Thomson The like of a Commission to a buyer to Infeft the seller and himself and to do all other things necessary for his Security December 16. 1668. Sir Alexander Frazer contra Alexander Keith The Obligation upon the part of the Mandator is to Refound to the Mandatar his damnage and expense and to keep him harmles but this extends not unto casual damnages as if the Mandatar were spoiled in the way or suffered Shipwrack in going about the Execution of the Mandat l. 26. inter causas § 6. non omnia ff Mandati but this is to be limited unless the Mandat do specially require Concomitant hazard as if a Mandatar be sent through a place where there are Forces of Enemies Robbers or Pyrats commonly known to haunt the place by which he must pass 38. To come unto the special kinds of Mandats they are either express or tacit to one Mandatar or more generall or special to be performed in the name of the Mandatar for the Mandators behove or in the name of the Mandator As also amongst Mandats are comprehended the Commissions of Institors and Exercitors and all Precepts Procuratories Assignations and Delegations 39. A tacit Mandat is that which is inferred by signs and is not exprest by words as he who is present and suffereth another to mannage his Affairs without contradiction gives thereby a tacit Mandat l. qui patitur 18. l. qui fide alterius 53. ff mandati for in this qui tacet consentire videtur So he who whispereth his Servant in the Ear if he immediatly Kill or Wound any Person present is presumed to give Command to the Servant so to do if there was capital Enimity betwixt him and that person before In like manner the giving of Evidents or Writes yea which is more the having of these though the giving appear not it is presumed to Constitute Procurators as is evident in the having a Precept of Seasine which is sufficient without any other power given to the Bailzie or Acturnay And Advocats are presumed to have Warrands from Parties for whom they compear without producing any Mandat not only upon production of the Parties Evidents or alledgeances special in Points of Fact which if wanting the compearance of Procurators in inferiour Courts is held as without Warrand and the Decreet as in absence But even without these if Advocats do no more but appear and take a day to produce Parties to give their Oathes A Wife having her Husbands Band in her hand Impignorating it for an hundred Pounds the Impignoration was found valide against the Husband the Wifes Warrand being presumed by her having the Bond February 4. 1665. Paterson contra Pringle And the Warrand of a Servants taking off Furniture for his Master and giving Receipt in Name of his Master and for his use found not to obliege the Servant to pay or instruct his Warrand which was presumed to be known to the Merchant unless the Servant had otherways imployed the Furnishing November 17. 1665. Howison contra Cockburn And a Warrand was inferred by the presence of him who had Commission to do and hindred not February 23. 1667. Lord Rentoun contra Lambertoun And a Warrand of a Factor or Agent for Charging and Denuncing a Daughter And her Husband upon a Bond granted to her Mother was presumed from having the Bond December 23. 1673. Thomas Dalmahoy contra Lord Almond 40. Mandats given to more Persons may be either to each or some of them severally by divers Warrands or to more by the same Warrand whereupon these Questions arise First When there are many Mandatars joyntly Whether they must all necessarly joyn before they can Act so that if one should die the Commission is void Or whether it be understood to the Survivers Or to the plurality of them Secondly Whether Mandatars be all lyable in solidum or but prorata As to the First Question If many Mandatars be Constitute severally or with a quorum or Plurality exprest there is no debate but if otherwise the case is very doubtful and there be pregnant Reasons and Testimonies upon both parts but this seemeth to prevail as the general Rule that Mandats joyntly given
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry 〈…〉 contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
Parliament 1617. But even Wodsets cannot be transmitted without resignation 9. But where it is said that the resignation must be by the Vassal or his Procurator this question ariseth if the Assignation be made by him who is not truely Vassal but with consent of the true Vassal quid juris Craig lib. 3. dieg 1. shows that in his time this question was not clearly determined nor is he positive in it but this far if the resigner had no Title no consent could be sufficient yet if he had a colourable Title the consent of the true Vassal might validate it If the true Vassal be consenter to the Procuratory of resignation either expresly bearing that the disponer with consent c. constitute his Procurators Or if he be consenter to the disposition by being exprest in the entry thereof which is holden as extensive to the whole disposition and so as repeated in the same will be as valide as if the consenter himself had granted the disposition or Procuratory for the Act of the disponer though more express and amplified is no more but his consent and so the other consenting doth the same materially which he would do if he were disponer formally but if his consent be adhibite after the resignation is made it is meerly personal and cannot have influence on the resignation which was before it or if he but permit or give license to the disponer or which is alike if he consent that the disponer dispone in so far as may concern the disponers right these will not be sufficient warrand for the resignation but if he give warrand or consent to the resignation it is sufficient neither is there neces sity to distinguish whether the disponer have a colourable Title or not se ing it is the consent of the true Vassal and the resignation as flowing from and warranted by that consent which transmitteth the right and therefore an Infeftment of an annualrent granted by a person not Infeft was found valide because a consenter thereto was Infeft and so it did exclude a valide right flowing from that consenter to a singular successor thereafter viz. a Tack Decem. 15. 1630. Jean Stirling contra Tennents 10. Resignation how necessar soever to transmit an Infeftment yet because the Procuratory and Instrument of resignation may be lost therefore the Vassal possessing fourty years by vertue of an Infeftment mentioning such a resignation the same will be valide without the production of the procuratory or Instrument of resignation which therefore is presumed thence presumptione juris Par. 1594. cap. 214. 11. As to the effect of resignation there is no doubt but when the same is truely made and Infeftment follows conform the resigner is fully divested and the acquirer is fully invested and if there be conditions or provisiions whether bearing express clauses irritant that the acquirers Infeftment shall be null and the disponers Infeftment shall revive or he have regress how far these are effectual till by resignation or judicial process the same be recovered is more fully cleared before Title Infeftments It is no less evident that before resignation be made the disposition or procuratory operats nothing as to the real right which notwithstanding remains fully in the disponer though he be personally oblieged to perfect it albeit there be no such express obliegement in the disposition yet by the nature thereof the disponer is oblieged to Infeft himself if he be not Infeft and to Infeft the acquirer Hope alienations William Gladstanes contra Laird of Mckerstoun Yea the disposition of property being accomplished carrysall real right of the Land or Bonds for granting real right in favour of the disponer or his authors neither assigned nor mentioned in the disposition July 1. 1623. Craigy Wallace contra John Chalmers Yea a liferent carryeth the reversion in the disponers person as to the Liferenters Liferent use that ther eupon he might redeem a Wodset So likeways a disposition of Lands immediatly before a Term not expressing an Entry nor Assignation to the rent was found to exclude the disponer therefrom though Infeftment followed not till after the Term Spots Mails and Duties Andrew Caldwal contra Robert Stark And generally it carrys Mails and Duties as including virtually an Assignation thereto July 15. 1629. Inter eosdem And though the Disposition or Procuratory cannot constitute a real right yet it doth sufficiently exclude the Disponer or his Heirs from troubling the Acquirers Possession thereupon 12. The Main question then is what is the effect of a resignation when done and accepted by the Superiour and no Infeftment following thereon where in that case the right standeth whether in the Disponer Acquirer or Superiour and whether the resigner be fully thereby denuded or if he may not grant a second resignation whereupon the first Infeftment being recovered will be effectual This is very learnedly debated by Craig in the forementioned place where he sheweth that the common opinion was that the second resignation with the first seasine will be preferred though the Lords had decided otherways in the case of a Citizen of Perth who making a second resignation in favours of his Son though after the first resignation by the space of twenty years yet Craig approveth the old opinion concerning the resigner never to befully divested till the acquirer were invested this is clear that by the resignation the Fee falls in Non-entry ' and is in the superiours hands and while the resigner resigning in his own favours bereceived or the resignation past from Or otherways the acquirer be infeft the superiour hath the Non-entry duties of the Lands resigned if the Infeftment be not delayed through his own fault It is also clear that by the superiours acceptance of the resignation in 〈◊〉 there is upon him a personal obligation to Infeft that person in whose favours the resignation was made and therefore though the resigner dieuninfeft his heir by a single service hath right to that asother personal rights and thereupon may compel the superiour to infeft him yea as Craig observeth in the fore-cited place the Lords upon supplication without Citation will grant Letters summarly upon sight of the Instrument of resignation and warrand therefore to charge the Superiour to Infeft the party in whose favour it was made who may not receive another resignation or nfeft an other party or else his obliegement may make him lyable to the obtainer of the first Resignation pro 〈◊〉 inter esse if he be not in mora in doing diligence to get his new Infeftment expede recenter but the real right will be carryed by the first Infeftment though upona posterior Resignation and so posterior Decisions go along with Craigs opinion not only in the case of the first publick Infeftment upona second Resignation but which is much more after a Resignation made a base Infeftment flowing thereafter from the Resigner and being but a short time before the publick Infeftment upon the Resignation yet was preferred
renunce in the second instance after Decreet obtained against him Or in the first instance when the Ground and Title of the Pursuite instructs the debt then there needs no other decreet cognitionis causa but the Pursuer Protesting for adjudication the same will be admitted summarly Adjudication it self is a most simple and summar Process whereby the heir renuncing and the debt being established as said is the whole heretage renunced orbenefite whereto the heir might succeed is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement wherein the heir renuncing is again called to sustain the part of a defender which is only for forms sake for he can propone nothing and one single summonds is sufficient without continuation because it is accessory to a prior Decreet as Dury observes but expresseth not the Parties Feb. 26. 1629. And all is adjudged periculo potentis whatsoever the Pursuer pleaseth to Lybel alledging that it might have belonged to the heir entring Yea though any Party having Interest should compear and instruct that he hath the only Right and the Defunct was fully denuded it would be incompetent hoc loco Spots adjudication Cairncorss contra Laird of Drumlanrig 46. The reason is because the Adjudication is but periculo petentis and can give no Right unless the Defuncts Right competent to the heir renuncing be instructed Neither can the adjudger who is a stranger to the debitors right be put to dispute the same in obtaining the adjudication yet the Lords admitted a singular successor to propone upon his Infeftment that the Defunct was denuded and adjudged not the Property but all Right of Reversion or other Right competent to the appearand heir July 22. 1669. Alexander Livingstoun and Sornbeg contra heirs of Line of the Lord Forrester In this case the matter was notour to many of the Lords that the Lord Forrester having no Sons did contract his Estate with one of his Daughters to Leiutenent General Baities Son who was thereupon publickly Infeft But the reason why appryzings and adjudications have past so much at Random is because the appryzings have deboarded from their ancient form by an Inquest knowing the Lands which therefore would never have appryzed Lands but where the debitor was commonly repute Heretor or Heretable Possessor But when appryzings came to be deduced by Sheriffs in that part constitute by the Lords by Dispensation at Edinburgh where persons were made the Inquest who knew nothing of the Lands then all became to be appryzed which was claimed and though the appryzer would not pay a years Rent for entering him in Lands where he had no probability of Right in his debitor the greatest inconvenience was as to the Lands holden of the King it was little addition of Expences to passe one Infeftment for all and other Superiours getting a years Rent salvo jure they were not suffered to Contravert But now Adjudications being in place of Apppryzings and passing upon Citation before the Lords it is not like they will adjudge Lands where the Debitors are not at least repute heretable Possessors or Liferenters for now the Lords are in place of the Inquest And albeit as they suffer Decreets in absence to pass periculo petentis so they will suffer Adjudication to pass of all that is Lybelled but if any other shall appear and make it appear that they and their Predicessors have been holden and repute Heretable Possessors and that there was no Right repute to be in the Debitor the Lords might readily superceed to adjudge till some evidence were given of the Interest of the debitor Seasines having been now Registrat since the year 1617. And likewise Reversions though adjudicationes of these might more easily pass then because no Infeftment would follow But where Lands are adjudged and Infeftments follow there arises thence grounds of pleas and pursuits especially for Reduction and Improbation upon which all the Heretors of the Lands contained in the Infeftments would be oblieged to produce their Rights and open their Charter Chests to parties having no pretence to their Estates The adjudication was sustained of all Lands generally without condescendence Decemb. 14. 1638. Corser contra Dury But where the Defender appeared not or contraverted it not in the adjudication Process for Mails and Duties of the Lands adjudged was sustained in the same Libel Ibidem And in adjudication of a Reversion the Declarator for redeeming the same was sustained in the same Lybel July 8. 1629. Dury contra Kinross 47. In adjudication all is competent to be adjudged Which should have befallen the heir entering as Lands Annualrents Reversions Tacks Liferents and all Heretable Bonds yea not only these Rights themselves but the bygone Rents and Duties thereof preceeding the adjudication and after the Defuncts death may be adjudged and pursued against the Possessors and Intrometters in that same Process because these are competent to the Heir renuncing and there is no other way to attain them as in the case of appryzings which are not extended to bygones seing these may be arrested and pursued as Moveables belonging to the Debitor as was found in the said case Corser contra Dury Decemb. 14. 1638. And likewise heirship Moveables for the same reason are competent in adjudications but not against other Moveables of the Defunct which may be confirmed Spotswood Caption Isobel Hagie contra her Daughters Novemb. 24. 1638. Campbel contra John Baxter and so it is not competent against an Heritable Bond made moveable by a Charge Jan. 30. 1627. Couper contra Williamson and Bogmiln Yet if an Heritable sum should become moveable after the Defuncts death as by an order of Redemption it would be competent by adjudication seing it could be reached no other way In adjudications it is only competent to Creditors to appear having like Process of adjudication depending for all will be brought in pari passu who are ready before Sentence with the first pursuer Hope adjudications Stuart contra Sturt 48. If the adjudication be of Lands or Annualrents requiring Infeftment the Superiour will be compelled to receive the adjudger though a stranger his Vassal though he do not instruct his Authors Right salvo jure cujustibet suo Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty payable by the adjudger to the Superiour for their Entry though the Lords thought it equitable that it should take place as well in adjudications as appryzings the reason being alike in both yet found not sufficient ground whereupon to decern it seing the said years Rent is exprest in the Act of Parliament 1469. cap. 36. And the Composition of the Superiour for receiving appryzers Parliament 1621. cap. 6. Yet in the next Act of the same Parliament anent adjudications there is no mention of Composition to the Superiour though the Act relateth to the former Act anent appryzings and therefore they thought it not competent to them to extend the said composition ad pares casus where
gift of escheat before Denunciation was found null by exception Because it mentioned no particular Horning whereupon it proceeded though done by the Kings own hand at Court And though Anterior Hornings were produced in the Process and no other Donatar nor Officer of State quarrelled the same November 20. 1628. Weston contra Stewart 19. Gifts of escheat not bearing expresly goods to be acquired extend no further then to the goods the Denunced had the time of the gift February 27. 1623. Bruce contra Buckie And though the gift bore expresly not only the goods the Rebel had but which he should acquire thereafter during his Rebellion Yet the same was only extended to what he had the time of the Gift and what superveened within year and day June 27. 1622. John Jnglis contra Laird of Caprinton It was so decyded July 2. 1669. Barclay contra Barclay Yea the same was extended to no goods acquired after the gift seing the Style thereof bore not what he should acquire February 2. 1627. Lewis Somervail contra Mr. William Stirling 20. Escheats of Persons living within Regality belongs to the Lord or Baillie of Regality infeft with that priviledge And therefore Gifts by the King reach not these escheats but gifts by the Lords or Baillie of the Regality which was found to comprehend all Moveable goods and sums belonging to the partie Denunced as well within the Regality as without the same June 26. 1680. Young contra Laird of Raploch But these gifts Differ from the Kings gifts that they are effectual according to their Tenor both as to goods before and after the gift and are valid though granted generally or though before the Casuality fall if a special gift after the Casuality fell be not in competition for the Prior Limitations of the Kings gifts are only in Favours of the King that he be not prejudged by the default of his Officers But private parties ought sibi invigilare And albeit the diligence of Creditors be preferred to the Donatars chiefly by the Kings benignity Yet the same was sustained against a Donatar of Escheat by a Lord of Regality February 24. 1637. Gilmore contra Hagie 21. The main difficultie anent Gifts is when they are Simulat and to the behove of the Denunced which is much cleared by that excellent Statute Par. 1592. cap. 145. Declaring it a sufficient evidence of Simulation of any Assignation or Gift of Escheat if the Rebel himself his Wife Bairns or near Friends remain in Possession of his Tack and Goods to their own uses and behove yet it is not declared how long their possession must be Seing the Rebel ordinarily for some time is in possession till the Donatar use diligence But where the Rebel retained possession till his death a Gift though declared was found null by exception July 12. 1628. Morison contra Frendraught June 26. 1611. Gairdner contra Lord Gray Yea it was found Simulat where the Rebel possessed 9. years June 27. 1622. John Inglis contra Laird of Capringtoun and other Circumstances concurring 4 or 5. years by the Rebel was found sufficient the Donatar having consented to several Tacks and Wodsets granted by the Rebel And yet the same Gift was found valid in part in so far as concerned Heritable Rights acquired by the Donatar from the Rebel December 23. 1623. Ballantyn contra Murray four or five years Possession of the Rebel were found sufficient to infer Simulation though the Donatar was a Creditor and the Rebels Lands apprysed seing the appryser possessed not but the Rebel 6 and 9. of January 1666. Sr. Lawrance Oliphant contra Sir James Drummond So that the time of Possession sufficient to infer Simulation remaineth in arbitrio Judicis The next ground of the Simulation of gifts of Escheat and presuming the same to the Rebels behove is when it is taken in the name of the Children in his Family which was found Relevant without mention of the Rebels Possession June 25. 1622. Lord Borthwicks Bairns contra Dickson But the presumption was not found sufficient that the Gift was to the behove of the Rebels Son Here it was not alleadged that he was then in his Fathers Familie March 20. 1623. Keith contra Benholme The like where the Son was not in his Fathers Family and was a Creditor and made Faith it was to his own behove at passing the Gift though the partie Denunced did remain in possession sometime after Declarator December 4. 1669. Jaffray contra Jaffray The third Presumption of the Simulation of Gifts is when the same is procured and past by the Rebels means which was sustained though a part was by the Donatars means and a part by the Rebels though the Donatar was then a Creditor June 26. 1622. John Inglis contra Laird of Capringtoun The like found probable by Members of the Exchequer as Witnesses Nov. 28. 1626. Earl of Kinghorn contra Wood. Hope cessio bonorum Laird of Clunie contra Laird of Blandine Cant and Porterfield contra Sir James Stewart The like against an assigney constitute by the Donatar Hope Horning Sir Georg Hamilton contra Robert Ramsay Simulation of a Gift of Life-rent to the Rebels behove was found probable by the Rebels Oath and the Witnesses insert in the Gift June 19. 1669. Scot contra Langtoun This ground of Simulation is found relevant not only against the Donatar but against a singular Succesor not partaking of the Fraud whose Assignation was after the Creditors diligence December 10. 1623. Dowglas contra Belshes And though there was no diligence the Gift being exped blank in the name and filled up thereafter in the Donatars name It was found Simulat even as to him though obtaining it for his true debt December 17. 1670. Nicol Langton contra Robison Simulation is not otherwise valid against singular Successors Yet it will not be relevant to exclude the Donatar and prefer another Donatar in so far as concerns the first Donatars debt truly owing to him though the gift was given at the Rebels request and past at his own Charges So that the Exclusiion by this presumed Simulation was only Inferred as to the profit of the Gift above the Donatars own debt in quantum Lucratus est For that was found no Fault in the debitor Rebel to concurr in desire and moyen to get a gift to his Creditor in so far as concerned that Creditors debt March 11. 1624. William Dowglas contra Viscont of Air. The like where the Rebel concured in procurring the gift the Donatar having made Faith the gift was to his own behove showing his Debt and Back-band December 12. 1673. Mr. Georg Dickson contra Sr. Alexander Mcculloch All this must be understood if the Rebel remain unrelaxed for if unrelaxed a Gift though taken expresly in his name returneth and accresceth to the Fisk and next donatar July 6 1627. Earl of Annandale contra Laird of Cockpool Yea though he was after relaxed before any other gift November 28. 1626. Earl of Kinghorn contra
Ascendent or these of their side but only to Agnats conjoined by the Father Grandfather c. Which holdeth even though the heritage descended from the Mother or these of her side for in the service of Heirs the nearest lawfull Heirs are only inquired and retoured either by the Lineall Succession aforesaid or by express Tailzie or provision in the Infeftment without respect from whence the Inheritance flowed for which we have no Satute nor Custom But in England it is otherwayes for Paterna paternis and Materna Maternis takes place but with us the contrare was found in the case of John Gilbert as Craig observeth Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein and though there be equity in it yet no Law nor Practique since hath favoured the Maternal Line but the Father was found Heir to his Son even in the Lands where the Son was Infeft as Heir to his Mother and did exclude his Brother Uterin by that Mother February 5. 1663. Lenox contra Lintoun 4. In all this Line of Succession there is place for Representation of Descendents in place of their Defunct Parents So that Females of a further degree by the Right ofrepresentation exclude Males of a nearer degree as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance to his other Sons in private Rights though that be contraverse by the more comon Feudall Customs as is largely and learnedly dispute by Tiraquellus 35. In this Lineall Succession the Father Grandfather or other Ascendents of the Paternall Line succeed in heritable Right next unto Brothers and Sisters and before all other Collateralls or Agnats We have shown before why there is no mention of Ascendents in the Jewish Succession because such a case could hardly occurr among them Craig Lib. 2. Deig 13. affirmeth that it was doubtfull in his time whether Ascendants could succeed in heritable Rights and that he heard the opinion of some learned men in the contrary and that he had not found the Lords decide in it and that it is contrare to the Feudal Law and also to his own opinion yet he brings both evident reason and example in the contrary the reason is that no Inquest can justly Retoure that the Father Brother is nearer then the Father He bringeth also the Example of the Earl of Angus served Heir in the Earldom of Angus to his ownSon whom he had infeft therein And the Lord Colvill in likemanner having infeft his Son in all his estate though sum affirmed that this was by provision in the infeftment yet that the Service was is sure but that provision is uncertain and though some also were doubtful whether the Earl of Angus was served and infeft as Heir to that same Son which well inferreth that the Father was not infeft as Heir to his Son but not that he was not served Heir to him therein for he might have been served and not infeft Whereby the service as incompleat became void and the next Earl behoved to serve of new to the Son who died last vest and seased as of Fee The Custom and common opinion since is for the Ascendants and so the Earl of Roxburgh was served as Heir Male to his Son The Lord Ker and many others which ought to be the more favoured as more conform to equity and the Law of nature which in Dubio ought to take place where there is no Law nor custom to the contrary as with us there is none Neither did I ever hear of one who attempted to exclude a father by the Fathers Collaterails And though there had been no Decision upon it neither have there been upon many other uncontroverted Customs especially in Succession but the acquiescence of all Parties having interest in matters of so great moment is a strong Evidence of the Nationall consent by Custom But it hath aho been so decided by the Lords Hope Succession Mr. Robert Burnet contra Mauld Yea a Son being infeft as Heir to hisMother dying without Issue his Brother uterin by the Mother was not found Heir to him but his Father February 5. 1663. Lenox contra Lintoun As to the alledged opposition of the Feudall Law as hath been oft times said it is Local And therefore as in England all Ascendents are excluded so in Germany they succeed in the next place after descendents and are preferred to Brothers and sisters according to theNaturall course ofSuccession The reason why Brothers and Sisters of the Defunct are preferred to the Fathers with us may be because such Fees do commonly proceed from the Father And therefore by the continuance of that sameFatherly affection are derived to the Brothers and Sisters and because they are in more need of Provision then the Father TITLE XXVII Heirs 1. Appearand Heirs may pursue exhibition ad deliberandum 2. They may defend their predecessors Rights and Possessions being called or compearing for their interest and their executors have right to the Rents of these years they were appear and Heirs 3. The Aliment of Heirs from the Donatars and Life-rentars 4. Heirs not entred have the benefit of Clauses which by Nature import they should not be actual Heir 5. Heirs have interest in all Rights granted to their Predecessors though not mentioning Heirs who are not exclusive of Heirs by their Tenor and Nature 6. Heirs have the benefit of all Rights heritable by Destination or having a future Tract of time after the Defuncts Death 7. Heirs have Right to Moveable heirship or obleigment for Sums wherein Executors are excluded 8. Heirs of Lyne are heirs generally their interest 9. Hirship Moveables 10. Heirs of Conquest their interest 11. Heirs Portioners their Interest 12. Heirs Male Tailzie and Provision their interest 13. All Heirs are lyable pasivè for the Defuncts debt but not in the same way 14. Heirs Portioners how far lyable 15. The effects of different Provisions or Obligations by Defuncts in Favours of Divers heirs Portioners 16. Heirs not being Portioners no substitute in Bands are lyable in solidum 17. The order by which heris are lyable passivè and may be discust 18. Heirs of Tailzie ripresent not the Defunct in obligations contrary to the Terms of the Tailzie 19. Heirs of Marriage may quarrel their Predecessors Deeds being meerlygratouitus in their prejudice but not such as are onerous or rational Deeds 20. Heirs having the benefit of discussing may propone the Exception that all parties having interest are not called without instructiug the Right whereto they may succeed 21. The exception of the order of discusing is not sustained without condescending on the heritage whereunto the anterior heir may sueceed and what is discusing 22. The order and effect of a Genral Charge to enter heir 23. The order and effect of a special charge to enter heir 24. Renounciation to be heir its order and effect 25. The entrie of heirs general and effects thereof 26. The entrie of heirs upon precept of Clare Constat
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
Money are lent and the Obligement to repay is conceived thus To be payed at such a Term to the Lender and in case of his Decease or failing him by Decease or after his Decease to such a Person Whence these Questions result first Whether the Lender be Feer of the Sum and the Person substitute Heir of Provision Or whether the Person substitute be Heir whether he may succeed at any time or only if the Lender die before the Term of Payment As to the first Question the Person substitute is not Feer but Heir and the Lender is not Liferenter but Feer and therefore may dispose of the Sum at pleasure by Assignation Legacy or otherwise as other Feers may February 22. 1623. Mr. John Leich contra Laird of Balnamoon February 28. 1626. Tulliallan contra Laird of Clackmannan And where the Clause bare to be payed to Clackmannan and his Spouse the longest liver of them two and in case of their Decease to Alexander Bruce their Son in Fee with an Obligement to infeft the Spouse in Liferent and the Son in Fee in an Annualrent effeirand thereto yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount where the Father surviving the Term of payment though he freely and without a Cause onerous discharged the Sum provided to be payed to him and failing him to his Son though it bare a Clause of Infeftment to the Father in Liferent and to the Son in Fee but no Infeftment followed The like though the Father and the Son subtitute were both infeft in one Seasine July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun As to the second Question The more ancient Decisions have interpret such Clauses strictly thus That the Sum payable at such a Term to the first Person should be payed at that Term to the Person substitute so that it should be payable at no Term thereafter to the Person substitute but if the first Person survived the Term of payment though he did nothing to alter the Substitution the same should not belong to the Person substitute but to his heirs Hope succession Spots Assignations Laird of Bonytoun contra John Keith Feb. 22. 1623. John Leich contra Laird of Balnamoon Where it was found that such Sums came under the first Persons surviving the Term their Testament and belonged to their Executors But more frequent Decisions have with better reason interpret such Clauses on the contrary that the Person substitute is heir of Provision whensoever the Defunct dies whether before or after the Term. Because constitution ofheirs is simply and not ad diem but mainly because the ordinary intent of such Clauses is to appoint Portions for the Bairns named therein who therefore are substitute heirs of Provision to their Father so that if he do not expressly alter or prejudge the Substitution his intent is that they succeed him whensoever Spots Assignations Currie contra Nimmo Relict of John Thomsom contra William Thomson The like in a Legacy left to a Person and failing her by Decease to another which was not found à fidei commissum to be restored by the first Person to the second at her death And therefore the Assigny of the first Person was preferred Spots Disposition Sarah Reid contra Alexander Downie January 18. 1625. Wat contra Dobbie June 26. 1634. Keith contra Innes Therefore such Sums bearing no Clause of Infeftment yet fall under Testament neither hath the Relict a third thereof Hope Successions In these Substitutions though the Person be substitute as heir yet he is not properly heir and so needs not to be entered by any Service because he is nominate and there is no other heir But inTailzies though some of the Members of the Tailzie be nominate yet because in Lands as is before said the Person nominate is never the first heir therefore there must be a Service to enquire whether the first heir fails or not which is unnecessary where there is one Person only nominate to be heir concerning which there needs beno enquiry Though the Persons substitute be as heirs it followeth not that they must be lyable as heirs of Provision to the first Person 's Debt contracted before the Substitution because they are not properly heirs not requiring any Service They are interpretativè like to heirs because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter but that they are understood as if they were thus express'd With power to the first Person to alter aad dispone at his pleasure during his life So thereafter only the heirs substitute take place though in these respects as heirs yet in reality as secundary conditional or substitute Feers But the Substitute is lyable other 〈◊〉 Heirs and Executors being discussed unless the Person substitute abstain Because the Substitution is a gratuitous Deed in prejudice of Creditors post contractum debitum and so annullable and the Substitute medling is lyable to repay quoad valorem only but never by an universal passive Title July 3. 1666. Fleeming contra Fleeming The next difficulty is who is Feer in Provisions or Tailzies of Sums Annualrents or Lands in Conjunctfee wherein these general Rules do ordinarly take place First That the last termination of Heirs whatsoever inferreth that Person of the Conjunctfeers whose Heirs they are to be Feers and the other Liferenters 2. When that is not express'd potior est conditio masculi the Heirs of the Man are understood But these have their own Limitations as first in Moveable Goods and Sums provided to a Man and a Wife and their Heirs without me ntioning which failing to whose Heirs the same should be due were found not to fall to the mans Heirs but to divide equally betwixt the Man and Wifes Heirs February 2. 1632. Bartholomew contra Hassingtoun February 18. 1637. Mungle contra John Steill Yea a Clause in a Reversion redeemable by a Man and his Wife and their Heirs was found to constitute the Wife Feer of the Reversion because she was Feer of the Land Wadset Hope Liferent Kincaid contra Menzies of Pitfoddels But an Assignation to a Reversion provided to a Man and Wife the longest liver of them two and their Heirs was found to make the Man only Feer Hope Husband and Wife Walter Collistoun contra Laird of Pitfoddels A Clause in a Charter providing Lands to a Man and his Wife the longest liver of them two and the Heirs betwixt them Which failing to the Heirs of the Mans Body Which failing to the Wife her Heirs whatsoever though the last termination was upon the Wife yet the Husband was found Feer July 24. 1622. Ramsey contra Laird of Conheath The like in a Clause providing a Sum being a Wifes Tocher to the Man and Wife and the longest liver of them two in Conjunctfee and to the Heirs betwixt them Which failing the Wifes heirs yet the
doth remain and both are compatible Hope Successor Lucrative Gray contra William Burgh 2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title as for Love and Favour c. but though the Narrative thereof bear expressly a Cause onerous which being betwixt the Disponer and his apparant heir proves not and therefore the Cause onerous must be proven aliunde Vide Title Reparation upon Circumvention where the Narrative of Writs amongst conjunct and confident Persons proves not the Cause to be onerous And though there be a Cause onerous instructed it will not be sufficient unless it be equivalent to the worth of the Lands to substain it against Reduction but if the Cause onerous be considerable the heir will not be lyable simply or personally but the Right may be reduced and the heir may be lyble in quantum est lucratus And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment granted by his Predecessor to a third Party but to the apparant 〈◊〉 behoofe the Lords before answer ordained the Cause onerous of the Disposition to be instructed reserving to their consideration how far the apparant heir should be lyable personally thereby January 14. 1662. Nichol Harper contra Hume of Planergest The like of a Disposition of Lands by a Mother to her apparant Heir though it did bear a Sum of Money which did not prove betwixt Mother and Son February 15. 1676. Patrick Hadden contra George 〈◊〉 The like was found of a Disposition by a Father to his Son and apparant heir though the Son offered to prove it was for equivalent onerous Cause seing the Disposition it self did bear for love and favour and other good Considerations November 22. 1671. Beaty contra Roxlurgh But Bonds of Provision by Parents to Children infer no passive Title though the Children be Heirs apparant As when the Bonds are granted to the eldest Son or Bonds of Provision or a Tocher to Daughters when there are no Sons though in that Case the Daughters might be esteemed heirs apparant although truly they be not for a man is ever understood to be capable of having a Son and therefore Daughters are little more heirs apparant than Brothers Yet Bonds of Provision or Tochers are reducible by anterior Creditors if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor though there was no Son yet the Daughter and her Husband were found lyble to the Father's anterior Creditors for what was above a competent Tocher suteable to the Parties December 23. 1665. Dame Rachel Burnet contra Lepers Neither will taking Bonds in the name of the Daughters or assigning Bonds to them make them lyable as lucrative Successors And yet the accepting of Assignations to heretable Bonds by a Father to his eldest Son in which the Son would succeed as Heir may inferre this passive Title December 2. 1665. Edgar contra Colvil But where the Father in his Contract of Marriage provided his Son to several Bonds which before any Creditor pursued were payed and cancelled and it did not appear by the Contract whether they were heretable or moveable the Lords did not sustain the passive Title but found the Son lyable in quantum 〈◊〉 and did presume the Bonds to be heretable unless they were proven to be moveable January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay But a Disposition of Lands to the eldest Son was found to make him lucrative Successor although by his Father's Contract of Marriage with his Mother his second Wife the Father was obliged to infeft the eldest Son of the Marriage in the said Lands which did import a Succession seing the Obligement contained no determinate time and so might be performed by the Father any time in his life November 29. 1678. Hagens contra Maxwell The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage seing these were provided to the Heir of the Marriage February 22. 1681. Grizel More contra Ferguson The Disponer's Bairns Portions are not a Cause onerous being granted after the Creditors Debts albeit undertaken and secured by the apparant Heir bona fide before any Diligence at the Creditors instance not being payed before the Pursuit ibid. because the Heir may suspend upon double Poynding and will not be made to pay both the Bairns and Creditors 3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage which in many respects is accounted a Cause onerous July 8. 1625. Gray contra William Burgh Where the Son was not liberat though he offered to renounce the Lands he had by Contract And it was found that Lands being disponed and resigned by the Father in favour of the Son by his Contract of Marriage though they were for the present wadset and disponed with that burthen and thereafter redeemed by the Son by his own means so that there remained nothing in the Father but the Superiority and the 〈◊〉 yet the Contract of Marriage was found onerous as to the Wife 's Luerent And in respect the Son was Minor and presently revoked the Disposition and renounced all other Rights except that of the Wadset which he had redeemed he was liberat of the passive Title and the Lands declared redeemable by any Creditor anterior to the Contract January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker In the like Case where Lands were disponed by a Father to the Son in his Contract of Marriage for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land the Son was not found lyable in solidum as lucrative Successor nor yet the Pursuer put to a Reduction but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land June 17. 1664. Lyon of Murask contra Bannerman 4. This Title takes place not only in universal Dispositions of the Predecessor's whole Estate but a Disposition of any part thereof is sufficient seing the least as well as the most is praeceptio haereditatis 5. This Title is extended also not only to Dispositions made to and accepted by the immediate apparant Heir but also to the mediate apparant Heir so that he be alioqui successurus by the course of Law necessarly as what is granted to the eldest Son of the apparant Heir Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors prejudicial to the Disponer's Creditors whose Debts are anterior the reason holds as much where he dispones to his Oye who by the course of Law is to succeed to him as to his Son 2. It is Praeceptio haereditatis in the Oye aswell as in the Son And therefore the Rule in this Title is not that the Accepter be that Person who
Messenger at the Denunciation did make three Oyesses before he read the Letters of Horning that the People might thereby take notice of the Intimation which therefore ought to be with audible voice Which though it be not by any particular Statute yet is requisite by antient Custom and should be exprest in the Execution of all Letters which require to be published at the Mercat Crosses The intent thereof being that the Publication thereof may come to the Ears of the Countrey and be carried by common Fame that all parties concerned may look to their Interest And therefore such Publications at Mercat Crosses and at the Peir of Lieth have by Law and Custom as expedients to make them commonly known 3. Oysses before reading of the Letters and affixing the Coppie of the Letters upon these Publick Places And Horning hath this supper-added that there must be three blasts of the Horn after reading of the Letters But because Executions do not always bear 3. Oysses But generally lawfull Publication The Lords did declare upon the February 15. 1681. That they would sustain no Executions of Messengers done in time coming not bearing three Oysses publick readingof theLetters in a Reduction at the instance of Gordon of Park contra Arthur Forbes upon the want of 3. Oysses which came not to be decyded because the Executions were Improven And an Inhibition bearing only that the Messenger did lawfully inhibite and not bearing three Oysses or the reading of the Letters the Lords found the same null and would not Supplient by Witnesses that these were truely done July 11. 1676. William Stevinson contra James Jnnes But where the Executions did bear that the Messengers did lawfully publish and read Letters of Inhibition which by inspection of the Registers was found to be afrequent Style and not the former Style which was meerly generall The Lords sustained that the three Oysses were truly given Junne 21. 1681. Lundie contra Trotter 9. The Execution must also bear that the Messenger did give three blasts with his Horn And yet a Horning was not found null because it bore not expresly the partie to have been Denunced or three blasts to be given but only generally that the Rebell was Denunced by open Proclamation and put to the Horn January 19. 1611. Sr. Robert Hepburn contra Laird of Nidderie and an Execution was sustained though it bore not three blasts it being proven by the Witnesses insert that these blasts were truely given and the Execution bore orderly Denunced March 4. 1624. Drysdale contra Sornbeg and Lamingloun 10. Sixthly The Execution must bear that the Messenger for more Verification hath affixed his Signet or Stamp and the Stamp must appear if the Executions be recent else it will be null March 6. 1624. Comissar of 〈◊〉 contra So the Execution of a Horning was found null because it mentioned not the Stamping thereof Hope Horning Home contra Pringle of Whitebank Yet the Executions weresustained though they bore not these Words seing they were all written with the Messengers own hand and were Subscribed and Stamped as Hadingtoun observeth but expresseth not the partie February 19. 1611. 11. Seventhly Horning must not only be Execute at the Head Burgh of the Shire where the partie dwells but must be Registrat in the Sheriff-Clerks Register of that Shire within 15. days after Denunciation thereupon Otherwayes the same is null Par. 1579. cap. 75. Where the Clerk is ordained to give an Extract and Registrat it within 24. hours after recept of the Letters And if he refuse it the Charger may Registrat it in the next Sheriff Books or in the Clerk of Register his Books which upon Instruments taken of his refusall is declared sufficient Par. 1579. cap. 75. Wherein the Registration is ordained to be Judicially or before a Notar and four famous Witnesses besides the ordainry Clerk But this part of the Act is rescinded and it is declared that the Registration in the Sheriffs Baillies or Stewarts Books by the Clerk thereof or by the Clerk Register and his Deputs in the Books of Council and Session shall be sufficient in it self Par. 1600. cap. 13. And for this effect there is a general Register of Hornings Relaxations Inhibition Interdictions keeped at Edinburgh and a particular Clerk Deput having the Charge thereof But if the partie live within Stewartrie or Bailliery of Royaltie or Regalitie the horning must be Registrate there in the same manner as other Hornings must be Registrate in the Sheriff Books else it is declared null Par. 1597. cap. 265. But Denunciation against parties who have found securetie to underly the Law and compears not at the day appointed is declored sufficient being at the Crosse of Edinburgh within six days though not at the Head Burgh of the Shire Par. 1592. cap. 126. And likewise Denunciations against parties entring in the place of the Criminal Court with more persons then there Domestick Servants and Procurators are declared valid though Execute only at the Mercat Crosse of the Burgh where the Justice Court sits for the time and Registrat in the Books of Adjurnall Par. 1584. cap. 140. Executions of Horning was also found null because Execute upon the Sabbath day Spots Charge Ribbald Frenchman contra Sr Lewes Lauder but were not found null Because Registrat after the Rebells death being Denunced before December 20. 1626. Laird of Lie contra Executors of Blair 12. Though the Horning be orderly used yet if the Ground or 〈◊〉 whereupon it proceeded be not due or taken away before the Denunciation the Horning is thereby null and reduceable though no Suspension of the Horning was raised before but in this the Officers of State must be called to prevent Collusion Spots Escheat James Dowglas contra Creditors of Wardlaw So a Horning upon Lawborrows was found null by exception because Caution in obedience was found before Denunciation November 29. 1626. Smeitoun contra Spear Yea Horning was reduced because before Denunciation the Charger had accepted a Band in Satisfaction of the ground of the Horning which was found probable by the oath of the Charger against the Donatar Hope Horning Mushet contra Forrester The like where the Charge was Suspended before the Denunciation though the reason of Suspension militated only against a part of the Charge Hope Horning Buckie contra Earl of Erroll But the Rebells Oath or holograph discharges before Denunciation were not respected as presumed Collusive February 10. 1663. Montgomery contra Montgomery and Lauder In this case it was found that Reduction of the Decreet upon Informality not being upon material Justice did not annul the Horning Neither was Horning taken away by compensation by the like Sum due to the partie Denunced equall to that in the Horning not having been actually applyed by Process or Contract before the Denunciation Nor was any warrand required for using the Execution though for a partie living in England and done against a Daughter and her Husband But the having the principal
Band was found sufficient warrand for Registration of it and Execution thereupon And the Denunciation against the Husband was not taken off by dissolution of the Marriage before Declarator December 23. 1673. Thomas Dalmachoy contra Lord Almond 13. Horning though orderily used proceeding only upon generall Letters by Supplication against all and Sundry unlesse it be against a Burgh Colledge or Communitie proceeding not upon a Citation and for a special and certain Dutie the Denunciation thereupon hath no effect as to Escheat or Liferent though Caption usually follow thereupon Par. 1592 cap. 140. Which Act doth declare such Executions null And therefore such a Horning was not found sufficient to debarr a partie as not having personam standi in judicio January 24. 1674. Blair of Glascun contra Blair of Baleid much lesse can these general Letters make Escheat to fall or Annualrent be due yet Caption proceedeth upon it and useth not to be quarrelled 14. Horning is taken off and ceaseth by Relaxation which requireth the same Solemnities of Publication and Registration as Hornings do As is clear by the forcited Acts of Parliament thereanent But it doth only operat to free the Rebel relaxed as to his goods and others acquired after Relaxation February 14. 1635. Lochart contra Mosman December 23. 1673. Thomas Dalmachoy contra Lord Almond It is also ordained that all Copies of Summonds and Letters delivered by the Executer thereof shall be subscribed by him Par. 1592. cap. 139. I have not observed any Exception founded upon this Act which though it expresseth not a nullitie yet ought to be a rule to Messengers especially in Hornings and Inhibitions which may prefer any other more orderly diligence 15. The effect of Horning dulie used and Registrat in manner foresaid is that thereby the whole moveable Goods and Debts of the parties Denunced are Escheat and Confiscat and all that he shal acquire thereafter till he be relaxed Whereupon the Thesaurer used to cause raise Letters of Intromission for uptaking of the Escheat Goods direct to Sheriffs and Messengers And in case they be deforced or the Sheriff not able or willing to Execute the same Lett es will be direct to Noblemen and Barrons within the Shire to Convocat the Leidges in Arms and to make effectuall the former Letters Immediately Par. 1579. cap. 75. But this is long in Desuetude This is also an effect of Horning that the partie Denunced hath not personam standi in Judicio either as Pursuer or as Defender yet the Lords would not hold him as Confest if he appeared and were hindred by the other partie July 12. 1676. Sr. William Purves contra Sharp of Gospetrie The same will hold in any thing requiring the personal presence of the Denunced as byding by a write quarrelled of Falshood For clearing the matter of Escheats it will be necessary to show First what falls under single Escheat 2. How farr the same is burdened or affected with the Denunceds Debts or deeds for the first single Escheat extends to no Heritable Right whether of Land Annualrent or Heritable Band but itcarries the bygones of all these preceeding the Denunciation And there after till year and day July 1. 1626. Halyburton contra Stewart Hope Horning Sr. Hendrie Wardlaw contra William Dick. What Rights are Heritable and what moveable hathbeen shown before Title Real Rights So thatall which is there Moveable except Moveable Bands bearing annualrents falls in the single Escheat and somethings are Moveable in Relation to Escheats which are not Moveable in Relation to the Succession of Airs or Executors As Tacks not being Lyfrent Tacks Par. 1617. chap. 15. It carries also the Office of a Clerk-ship Hope Horning Mr. Hendrie Kinross contra James Drummond And likewise the Jus mariti of a Husband and therewith per consequentiam the Lyfrent right or other right of the Wife belonging to the Husband Jure mariti Spots Escheat Violet Dawling contra William Cochran It carrieth also all casualities befalling to a Rebel Denunced before the Denunciation As the Lifrent Escheat of his Vassals Felrury 13. 1611. Symson contra the Laird of Moncur But if the casuality had fallen to the Superior after the Superiours own Liferent had fallen by his Rebellion year and day it would be carried with the Superiors Liferent Escheat February 26. 1623. Clunie contra Bishop of Dunkell And if the Liferent Escheat or any other casualitie be gifted the gift makes it Moveable and so to fall under the Donatars single Escheat March 10. 1631 Francis Setwart contra the Ladie Samuelstoun And the single Escheat of Husband carrieth their Jus mariti and in consequence the Liferent of their Wives for though the Wifs right be a Liferent which wouldnot fall under single Escheat Yet the Husbands Right Jure mariti is no Liferent for if the Wife die before him his Right ceaseth in his own Life Tacks also fall under single Escheat unlesse they be Life-rent Tacks and Assignations to Life-rent Tacks and other Life-rents have been found to fall under single Escheat because the direct Right is incommunicahle For no Life-renter can put another Life-renter in their place but canonly assign the profits befalling to the Life-renter by the Life-rent Right So that it is no Life-rent in the Assigney but is as the jus mariti in a Husband which is as a Legal assignation Likewise Clauses of Relief in Heritable Bands fall under single Escheat because there is no Heritable Clause adjected to the Clause of Relief but Assignations to Heritable Bands makes them not fall to under single Escheat because the Creditors right is directly Transmitted and Stated in the Assigneys Person The single Escheat of Ministers carries the meliorations of their Manses but the Escheat of an Executor carries no more then what is his own Interest and not the Share of the Wifes Bairns Creditors Legators or nearest of Kin which is Escheat by their own Rebellion only even though the Testament were Execute by Decreets at the Executors instance against the Debitors December 21. 1671. Mr. Arthur Gordon contra Laird of Drum 16. As to the other Question how farr the Denunceds Debts or Deeds affect his Moveables fallen in Escheat it is clear that the Debt contained in the Horning affects the Escheat whether in the hands of the Thesaurer or Donatare Par. 1551. cap. 7. Par. 1579. cap. 75. And likewise all Intrometters with Escheat by Gift Assignation or otherways upon a single Sum monds of Six days Par. 1592. cap. 143. Secondly It is clear that no Assignation Disposition or other Deed done by the Denunced after Denunciation not being for fulfilling an Anterior Obleigment before Denunciation for a Cause onerous to a lawful Creditor can affect the Moveable Goods or Debts of the Denunced But when the Denunciation is upon a Criminal Cause the Escheat takes not only effect from the Denunciation but from the committing of the Fact Therefore a Donatar of Escheat recovered a Sum due to the Rebel though