the Liferenter dyed during the Minors Minoritie he might return to the possession in the same way as if the Liferenter were in possession but as for the tollerance now the Liferenter having entered by the Liferent Right and it being reduced in favours of the Pursuer as the Minor could not thereby attain possession so neither can he give tollerance to defend the Liferenter The Lords repelled also this second Defense Patrick Urquhart contra Thomas Blair Eodem die PAtrick Vrquhart having charged Thomas Blair upon a Bond granted by him and William Young as co-principalls Thomas Blair Suspends and alleadges that William Young has payed the whole It was answered that this was not instructed and therefore not receivable being in a Suspension It was answered that though in a Suspension yet a terme is always granted where it is another mans Right It was answered that the Suspender is in hazard of breaking and has not found a good sufficient Cautioner and therefore if he get delay he ought to give better Caution It was answered that he had found Caution who was accepted and he was oblidged to do no more The Lords ordained him to make faith de calumnia upon the Reason but would not put him to find new Caution Robert Scot contra Silvertounhill Eodem die RObert Scot pursuing a Poynding of the Ground for an Annualrent Silvertounhill compeared and alleadged possession by vertue of a prior Annualrent and that the Pursuers Infeftment was base not cled with Possession For proving Possession Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time for himself and in name of the Tenents which had Witnesses But designed not the Writers name and being alleadged to be null for want thereof The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another Johnstoun of Scheens contra Alexander Brown Eodem die JOhnstoun being pursued to remove from certain Lands It was alleadged no Process because all Parties having interest were not called viz. The Defenders wife in respect he possest but by her Right jure mariti and she was not warned Which the Lords found relevant Mr. Thomas Johnstoun contra Mcgregor Iuly 19. 1665. MR. Thomas Iohnstoun having obtained the Gift of Bastardie of one Mcgregor and declared in general insists now in his special Declarator against Patrick Mcgregor for 2000 merks belonging to the Bastard It was alleadged absolvitor because there was a Gift granted in the Usurpers time and declared whereupon the Defender had transacted with the Donatar and satisfied him and obtained his discharge It was answered non relevat because in the Act of Parliament confirming Judicial Precedor under the Usurpers Gifts of Bastardry and all following thereupon are excepted so that the Defender had no Defense in the point of Right and as for his bona fides it only relevant for what was truly payed but not for what was in his hand The Lords repelled the Defense in respect of the Reply Mr. James Winerham conra Lady Idingtoun Iuly 19. 1665. MR. Iames Winerham pursues the Lady Idingtoun personally for Feu-Duties out of certain Lands Liferented by her It was answered non relevat for any years before the Ladies possession because Feu Duties may be Pursued either really by poynding of the Ground or personally against the Intrometters with their profits and because the Feu-duties are as the yearly Rent yet that cannot be extended further than during the years the Possessors intrometted The Pursuer answered that the whole profits being lyable for the whole Feu-duties whether of that or preceeding years the Lady was lyable not only for the years of her possession but for bygones The Lords repelled the alleadgeance and found the Lady lyable personally only for the years of her possession Ryce Gum contra Mckewn Eodem die RYce Gum having obtained Decreet before the Baillies of the Cannongate against Mckewn to repone him to an Assignation he Suspends on this Reason that the Decreet was null wanting Probation proceeding only upon the alleadged judicial confession of the Suspender without proponing any defense acknowledging the Lybel and succumbing in the Defense but simply confessing the Lybel which cannot prove against him being under the hand of an Clerk of an Inferiour Court only without the Suspenders subscription or oath Which the Lords found relevant Mr. Robert Dickson contra Mr. Mark Ker. Iuly 21 1665. THere being a competition betwixt Mr. Robert Dickson and Mr. Mark Ker as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day Mr. Robert Dickson had past in Exchequer long before and his Summons was raised two dayes before his Gift was Sealed and so was not a Regular Diligence He alleadges Mr. Mark Kers was more irregular because being a Declarator his Summons was not upon 21. days It was answered the Summons was priviledged It was Replyed that the priviledge was granted periculo petentis upon a common Bill which passes without observation The Lords considering that their Gifts were both past in one day and that there diligence was so near conjoyned the Gift and declared them joyntly Spreul contra Miller Eodem die BArbara Miller having left two Legaces and named William Wilson her Executor and universal Legatar he nominats his Wife and one Giffin his Executors Spreul having right to the two Legacies pursues the Relict and Executors of Wilson who was Executor to Barbara Miller for payment of the Legacies He alleadges absolvitor because the first Testament was not Execute 2ly The special Legacies must be abated proportionally with the general Legacies The Lords repelled both the Defenses and found the general Legacie not to come in pari passu with the special and found that the Executor of the Executor was lyable unless he could alleadge that the first Executor had done diligence and had not recovered or was exhausted Laird of Ludquharn contra Laird of Gight Iuly 21. 1665. THe Laird of Gight having Married Ludquharns Daughter who remained in her Fathers Family and brought forth a Bairn to Gight and dyed Ludquharn the Childs Guid-sir keeped her in his Family several years and now pursues Gight for her Aliment who alleadged absovitor because the Pursuer never having required a promise of this Aliment nor desired the Defender to take home his Daughter It must be presumed that the Pursuer did it animo donandi for his own Oye The Lords found this Defense relevant for all years preceeding the intenting of this Cause Thomas Rew contra Viscount of Stormont Iuly 22. 1665. THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont who alleadged no Process because the Citation was not within year and day of the Summons the warrant thereof which bears to cite the Defenders to compear the day of next to come The Lords found the Defense relevant Johnstoun contra Tennents of Achincorse
Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ— Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to â—e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ— that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ— five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ— whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
also because their Service the only ground of the Decreet was Reduced in Anno 1656. wherein there was an Act of Litiscontestation now wakened The Defender alleadged he got wrong in the said Act because he having proponed a Defense upon the Pursuers behaving themselves as Heirs no wayes acknowledging their Minority he alleadged they behoved to prove the Reason as well as the Exception seeing they were both consistent yet the Act ordained him to prove his Defense of behaviour but did not ordain them to prove their Minority The Lords found this alleadgence relevant It was further alleadged that the Reduction of the Pursuers retour is not competent against this Defender to Reduce his Decreet because the said Reduction was long posterior to his Decreet and he was not cited to the Reduction The Pursuers answered they needed call none to the Reduction of of their Retour but the Judge and Clerk and Inquestâ— and though the Defenders Decreet was anterior they did not know the same having been obtained when they were within twelve years of age and never charged thereupon before the Reduction of their Retour and so they never knew it nor were oblieged to know it The Lords repelled this Defense and sustained the reason of Reduction unless the same were elided by the said Defense of behaving as Heir Thomas Iack contra Fiddess Eod die EODEM die Thomas Iack pursues Fiddess alleadging that Fiddes having given him in custody the sum of five hundred merks in Anno 1650. by a Ticket produced bearing To be keeped by him with his own upon the Deponers hazard and that the Pursuer for his security did thereafter go to Dundee and took his Goods thither where he lost the said sum and all his other Goods by the English taking the Town by storm and plundering it yet Fiddess conveened him before the English Officers at Leith who most unjustly decerned him to pay the sum and put him in Prison till he was forced to give Bond for it and thereafter payed it unto this Defender his Assigney who concurred with him and knew the whole matter and now craved repetition condictione indebiti The Defender alleadged Absolvitor because the Pursuer made voluntar payment and so homologat the Decreet and never questioned the same till now The Pursuer answered it was no homologation nor voluntar he being compelled to grant it and expected to remeid from the English Judges with whom the Officers had so grear power neither could this be counted any Transaction seeing the whole sum was payed nor any voluntar consent nor homologation being to shun the hazard of Law So that though these Officers had been a Judicature if in obedience to their Sentence he had payed and after had Reduced the Sentence he might have repeated what he payed much more when they had no colour of Authority The Lords Repelled the Defense of Homologation It was further alleadged for the Defender Absolvitor because he offered him to prove he required his Money from the Pursuer before he went to Dundee and got not the same and it was his fault he took it to Dundee being a place of hazard The Pursuer replyed that after the said Requisition he made offer of the Money and Fiddes would not receive the same but continued it upon his hazard as it was before The Lords Repelled the Defense in respect of the Reply and because the Defense and Reply were consistent ordained the Parties to prove hinc inde the Pursuer his Libel and Reply and the Defender his Defense Weymes contra Lord Torphiohan Iuly 25. 1661. LADY Mâ—ray Iean Elizabeth and Katharine â—â—ymes pursue the Lord Torphichane alleadging that their Deceased Sister Dam Anna 〈◊〉 having a Wodset of 20000. Merks upon the Barrony of Errot granted a Bond of Provision thereof to her Daughter Iean Lindsay thereafter Lady Torphichane and to the Heirs of her Body which failzing to return to the saids Pursuers with an obliegement that her said Daughter should do nothing to prejudge the saids Heirs of Tailzie which Bond was delivered by the Earl of Weymes to the Defender then Husband to the said Iean Lindsay who oblieged himself to make the same forth-coming to all Parties having interest as accords Yet thereafter during the Marriage the said Iean Lindsay entred Heir to her Mother and she and the Defender uplifted the Wodset sum passing by the Bond of Provision which sum being in place of the Wodset and unwarrantably uplifted by the Defender contrair the Bond of Provision known to himself which he was oblieged to make forth-coming he ought to refound the sum The Defender answered that the Libel is no wayes relevant for if his Deceast Lady Iean Lindsay being Feear of the Wodset did uplift the same and contraveened the Bond of Provision nihilad eum who is but a singular Successor having Right from his Lady by Contract of Marriage whereof there was a minute at the time of his Marriage expresly disponing this sum without any mention â—â—knowledge of the Bond of Provision and albeit he knew the fame after his Right nihil est And as for his Ticket it can work nothing though the Band of Provision were now produced it being but a Personal Oblidgment can oblidge none but his Ladies Curators or Successors and if they will alleadge that he is either Heir or Successor Relevant and his Ticket to make it forthcoming as accords nihil novi Iuris tribuit The Pursuer Replyed That albeit a singular Successor for an onerous cause might have uplifted the Wodset and been free yet the Defender being as the same Person with his Ladie and having no onerous cause but his Contract of Marriage wherein there was a plentiful Tochar of 20000. lib. provided to him besides this and having known the Band of Provision before the uplifting of the Sum and so particeps fraudis he is lyable to make the Sums received by him forthcoming by the Act of Parliament 1621. And also by the Common Law in quantum est accratus alterius dispendio The Lords found the Lybell and Reply relevant and approven and therefore decerned Torphichine to refound the Sum. William Ker contra Parochiners of Cardine Iuly 26. 1661. WILLIM KER as Executor confirmed to Umquhile Mr. Andrew Ker his Father pursues the Minister and Parochiners of Cardine for intrometting with his Fathers Steipend of the Kirk of Cardine in Anno 1652. and 1653. And for the Annatine 1654 Because his Father died on the 22 of November 1653. The Defenders alleadged absolvitor because he being Collegue Minister placed with the Defuncts consent and the Defunct being Suspended by the Presbetrie he got Right to these Years Stepends and obtained Decreet against the Heritors and uplifted conform and so was bona fidei possessor cum titulo 2. He offered him to prove by an Act of Presbytrie that at the time of his entrie he was provided to eight hundred merks of the Defuncts Steipend by the Defuncts own consent And as for the
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
satisfying of these and in so far the Corns were not their own and so they could pay for no more Corns then their own neither could they be lyable for dry Multure unless it were Constitute by Writ especially seeing the Charger Libels not upon the Defenders Infeftment or Bonds of Thirlage but upon his own Infeftment only generally as Infeft in the Miln of the Barony The Lords Repelled these Alleadgences and Sustained the Decreet for all the Corns except Seed Horse-corn and Teind which tholled not Fire and Water within the Thirle Nicol Harper contra Hoom of Plandergaist Eodem die NIcol Harper pursues Collonel Iohn Hoom of Plandergaist for payment of a Debt of umquhil Hoom of Plandergaist his Brother and condescends that the Defender hath behaved himself as Heir at least Successor Lucrative to his Brother in so far as his Brother Disponed the Lands of Plandergaist to William Hoom of Linthil to the behove of the Defender then his appearand Heir whereupon the Defender is now in possession The Defender alâ—eadged non relevat to infer this passive Title unless the Disposition had been to the Defender himself or that he had thereupon been Infeft but a third Party being only in the real Right and the Defunct denuded before his death albeit there was a personal obliegment of Trust in Favours of the appearand Heir if that cannot make him Lucrative Successour but the Pursuer may reduce the same if it was without Cause onerous The Lords found the Defence relevant to Liberat the Defender from this passive Title but would not put the Pursuer to Reduction but admitted it by Reply ad hunc effectum that the Defender should be countable according to his Intromission and that the Pursuer as a lawful Creditor should be preferred upon his legal Diligence to the said Disposition But the question arising whether the Disposition if in trust was Lucrative or not and what to be Lucrative imported whether without any price or within the half or third of the just price The Lords before answer ordained the Disposition to be produced and such Adminâ—â—les for instructing of the â—nerous Cause as the Defender would make use of reserving to themselves what the samine should work Robert Dickie contra Theoder Montgomery Eodem die RObert Dickie as Assigney Constitute by Robert Montgomery to a Contract betwixt Theoder Montgomerie and the said Robert Charges Theoder to pay 700. merks He Suspends on this Reason that the Debt was Discharged before the Assignation or Intimation conform to the Discharge produced The Charger answered that the Discharge is null as wanting Witnesses The Suspender replyed he offered him to prove Holograph The Charger answered non relevat against him a singular Successor especially the question being of the Date For if Writs proven Holograph could instruct their own Date no Assigney or any other person using legal Diligence by Arrestment Appryzing or otherwise could be secure But that their Cedents and Authors might evacuat the Right by Discharges or Renunciatioâ— Holograph And therefore seeing by express Act of Parliamenâ— Writs wanting Witnesses are declared null The Exception introduced by Custom of Holographon ought not to be extended especially in relation to the Debitor against singular Successors The Suspender alleadged the inconvenience was alâ— great on the other hand it being ordinar for Masters to give their Tennents Holograph Discharges and whatever favour necessar Assignations by legal Diligence might have yet this is a voluntar Assignationâ— The Lords repelled the Reason of Suspension and Reply in respect of the answer and duplâ— and found the Holograph Discharge not to prove its own date against the Assigney unless the Suspender could instruct it by other Adminicles George Grant contra Grant of Kirdels Ianuary 15. 1662. GEorge Grant pursues Reduction of a Renunciation of a Wodset made by Grant of Morinsh to Grant of Kirdels ex capite inhibitionis because he had Inhibit Morinsh the Wodsetter before he granted the Renunciation The Defender alleadged that he had a Reduction of the Bond whereupon the Pursuers Inhibition was raised depending and declared he held the production satisfied and repeated his Reason by way of Defense that the Bond was null wanting a Date either of Day Month or Year The Pursuer answered that the Bond bare the Term of payment to be Whitsunday 1635. and so instructs that the Bond was betwixt Whitsonday 1634. and Whitsonday 1635. The Defender answered non relevat unless the Month and Day were also exprest because otherwise the means of Improbation cease by proving alibi The Lords Repelled this Defense seing the Year was exprest in re antiqua but if Improbation had been insisted on less Reasons in the indirect manner would be sustained The Defender alleadged further Absolvitor because this Bond albeit it be assigned to George Grant the Pursuer yet it is offered to be proven that the time of the Assignation the said George was Pupil within twelve years of age in his Fathers Family And so in Law it is presumed that it was acquired by his Fathers Means and is all one as if his Father had taken Assignation in his own Name and granted translation to his Son And it is clear by the Testament produced that grant of Ballandallochs Father was Tutor to the Wodsetter and during his Tutory any Right taken by him of sums due by the Pupil are presumed to be satisfied by the Pupils Means and to accresce to the Pupil against whom he nor his Assigney can have no Action for any particular apart but the whole must come in in the Tutors accounts and offers to prove if need beis that the Tutor intâ—s habâ—â—t being Debitor in greater sums to the Pupil then this The Pursuer answered First the Alleadgence is no way relevant upon such presumptions to take away the Right standing in the Defenders Person Secondly The Defense is not liquid and so can make no compensation albeit his Son were expresly Assigney as he is not The Lords found the Defense Relevant unless the Pursuer would condescend and instruct that the Assignation was granted to him otherwise then by his Fathers Means Thomas Fairholme contra Margaret Bisset Ianuary 18. 1662. THomas Fairholm as Executor Creditor Confirmed to Andrew Reid pursues Margaret Bisset his Relict to deliver the Ware in his Chop contained in the Pursuers Confirmation The Defender alleadged Absolvitor because she has Confirmed the Ware in the Shop specially and particularly for the use of the hail Creditors and the Pursuers Confirmation is only general not condescending upon the particular Ware And though the Defenders Confirmation be posterior yet it is special and hath attained Possession before any Pursuit at the Pursuers instance upon his prior Confirmation and Confirmations do not establish Property until Possession or Execution but is only as a legal Disposition incompleat as Gifts of Escheat where the first Sentence or Possession gives the first real Right of Property The Pursuer answered that his Confirmation
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
subscribed but by one Nottar and by one subscribing Witness there being more Witnesses insert in respect that Marriage followed thereupon Lord Couper contra Lord Pitsligo Iuly 3 1662. THE Lord Couper alleadging That being sitting in Parliament and taking out his Watch to see what hours it was he gave it to my Lord Pitsligo in his hand and that he refuses to restore it therefore craves to be restored and that he may have the Value of it pretio affectionis by his own Oath The Defender alleadged absolvitor because the lybell is not relevant not condescending quo modo the Defender is oblidged to restore for if the Pursuer insist upon his Real Right of the Watch as proprietar the Lybel is not relevant because he subsumes not that the Defender is possessor or haver of the Watch at the time of the Citation or since or at least dolo desijt poisidere or if the Pursuer insist upon a personal obligation he ought to subsume that the Defender borrowed the Watch or â—ook the custody thereof and thereby is Personally oblidged to keep and restore Secondly albeit the Lybel were relevant absolvitor because the Defender offers him to prove that the Pursuer having put his Watch in his hand as he conceives to see what hours it was The Defender according to the Ordinar Civillity they being both sitting in Parliament The Lord Sinclar putting forth his hand for a sight of the Watch The Defender did in the Pursuers presence put it in his hand without the Pursuers opposition or contradiction which must necessarily import his consent and liberat the Defender The Pursuer answered that he did now condescend that he lent his Watch to the Defender and that there was betwixt them Contractus commodati because the Defender having put forth his hand signifying his desire to call for the Watch. The Pursuer put the same in his hand and though there was no words yet this Contract may be celebrat by intervention of any signe of the Parties meaning which here could be no other then that which is Ordinar to lend the Defender the Watch to see what hours it was which importeth the Defenders oblidgment to restore the same To the second Defense non relevat because the Defenders giving of the Watch to the Lord Sinclar was so subit an Act that the Pursuer could not prohibite specially they being sitting in Parliament in the time and therefore in that Case his silence cannot import a Consent The Lords sustained the Lybel and repelled the Defence but would not suffer the price of the Watch to be proven by the Pursuers Oath but pro ut de jure Agnes Peacock contra Mathew Baillie Eodem die AGnes Peacock as Executrix to her Husband having pursued Mathew Baillie for payment of a Sum of Money he offered to prove payment and at the Term produced a Discharge whereupon the Pursuer took Instruments of the Production and offered to improve the same and craved that the Defender might be Ordained to Compear Personally and bide by the same and a Term being Assigned for that effect and the Pursuer Ordained to consigne a Pand in case she secumb in the Improbation and an Act Extracted thereupon The Defender coming from the Country and appearing Personally The Pursuer alleadged the Discharge is null wanting Witnesses The Defender alleadged non Competit in this state of the Process after the exception of Falshood quae est exceptoinum ultima but if the Defender had alleadged the same at the production The Defender would have replyed that it was Holographon and excluded any Improbation The Lords found the Exception of nullitie not competent in this state of the Process Allison Kello contra Paxtoun Eodem die IN a Process betwixt these Parties an exception having been proponed The Lords before answer Ordained the Proponer to produce the Writs with certification that the Defense should be holden as not proponed in termino certificatione being craved an Incident was produced because the Writs were the Proponders Authors Writs and in their hands It was answered that the Incident was not competent there being no litiscontestation It was answered that it was most competent wherever there was a certification as in Acts in Reduction and Improbation The Lords found the meaning of such Acts and Certifications to be only that the Parties should produce their own Writs they would make use of and such of their Authors Writs as they had the time of the Act and that the other Partie might have their Oath thereupon if they pleased and therefore refused the Incident Rentoun of Lambertoun contra Earl of Levin Eodem die LAmbertoun having intented an Improbation of Lands alleadged subscribed by his Father in Favours of the Umquhile Countess of Levin and her Daughters and others and having proceeded to the indirect manner Articles of Probation and Improbation were given in Writ hinc inde and a full Dispute thereupon and all such Witnesses examined as either Partie craved The Lords having Perused and Read the whole Process did upon the Defenders desire allow them to be heard viva voce and both Parties compearing The Pursuer referred the Dispute to the Lords without saying any further And the Defenders having related the Case and Debated in General anent the taking away of Writs by Presumptions and Conjectures and having entred to Repeat all that was in the written Dispute and to answer every alleadgance The Lords declared that it was not their meaning that the Dispute should be repeated but the material and weighty points which the Defender thought of most importance to have been resumed and urged shortly Referring to the rest the Lords Therefore they Ordained the Defenders to order their alleadgences as they might for all that they had to say betwixt ten and twelve the nixt day without any further unlesse the Pursuer answered Thomson contra Mackitrick Eodem die THomson and Mackitrick having Apprysed some Tenements in Drumfriese Mackitrick the first Appryser insists for Mails and Duties Thomson alleadged Mackitrick's Seasin was null as being within Burgh Royal and not given by the Baillies and Town Clerk of the Burgh conform to the Act of Parliament The Pursuer answered that his Seasin was given by the Provost and by a Nottar whom he imployed as Town Clerk not only in that but in several other Acts and that because the Town Clerk was excluded from his Office for not taking of the Tender and upon the same accompt there was no Baillie so that to compleat this Legal Diligence he was necessitat to take Infeftment by the Provost which is sufficient in such Cases because though the Act of Parliament mention the Baillies of the Burgh that it is in opposition to Baillies in that part but cannot be understood in opposition to the Provost who has Majorâ—m Iurisdictionem quia majori inest minus and offers them to prove that he was Provost at least habitus reputatus Provost and that he did imploy his
because he represents Frazer of Phillorth his Grand-father who Disponed the Lands in question to Doors and was oblieged to infeft him and did de facto resign in the Kings hands in his favour and so personally objection umquhil Phillorth Doors Author would be for ever excluded from objecting against Doors Right which flowed from him so neither can the Defender who represents him object against the Pursuer who is Successor in Door 's Rights The Defender answered that being called albeit he had no Right in his Person he might propone a Defense upon a Nullity in the Pursuers Right viz. that it is a non habente potestaâ—mâ— which is very competent here by exception This Declaâ—ator â—eing judicium petitorium wherein he may well repeat this Defense without necessiâ—y to call Doors because Doors being called in the Improbation all Infeftments in his Person are Improven for not production and so the Reason is instantly verified and albeit he were Successor to his Grand-father which he denys yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat and can be no ground of Declarator of Property The Lords repelled the Defenses and found it not competent to the Defender to quarrel the Pursuers Authors Right unless he had a better Right Skeen contra Lumsdean Iuly 19. 1662. SKeen having Charged Alexander Lumsdean upon a Bond granted by Mr. Thomas Lumsdean as principal and the said Alexander as Cautioner he Suspends on this Reason that the cause of the Bond was Bills of Exchange drawn by Verhage upon Kezar in Camphire to be payed to Skeen or his Order which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife and Mr. Thomas granted the Bond charged on for the saids Bills which Bills were protested upon Kezar's not paying of the Bills as the Protest bears To which protested Bills Mr. Thomas Lumsdean assigned the Suspender and whereupon he now alleadges that he must have allowance of the Bills protested being the cause of the Bond and therefore Skeen himself is lyable for the Bills which must compence the Charger The Pursuer answered that the Reason ought to be repelled because he offered him to prove that albeit the bills were protested for not payment by Kezar on whom they were drawn yet Mr. Thomas Lumsdean having gone back to Verhage who drew them Verhage payed Mr. Thomas and that before the Intimation of the Suspenders Assignation 2ly That Mr. Thomas Lumsdean being Factor in Camphire in his Factor Book upon the 109. page thereof there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean at diverse times conform to the Magistrates of Camphire their report upon the Lords Commission bearing that the said Factors Compt Book is Authentick and unvitiat and that Verhage who drew the Bills and Kezar upon whom they were drawn had both sworn before them that Verhage had payed the same to Lumsdean so the question was upon the manner of probation whereanent the Suspender alleadged 1. That Compt Books not being subscribed were not probative Writs even against the Merchant himself 2ly That at least they cannot prove against the Suspender his Assigney 3ly That they could be no better then Holograph Discharges by the Cedent which cannot instruct their own Date against the Assigney and so cannot prove the same to have been before the Intimation as for the Testimonies of Verhage and Kezar their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills and that it was not instructed who write the Book whether Lumsdean himself or his ordinar Book Keeper The Lords found the Probation sufficient against the Assigney the Charger also proving that the Books were written by Lumsdean himself or by his â—rdinar Book-keeper and thought that the Book proved against this Assigney being Mr. Thomas own Brother and no suspition he would wrong him and there being four several Posts of payment in several Months besides the Depositions of the foresaids persons Fiddes contra Iack Iuly 19 1662. FIddes pursues Iack for payment of a Bond of 500. merks which Iack acknowledged to have received in custody form Fiddes to be keeped as his own Iack alleadged that he had but the custody and did conform to his Obligation he sent the Money to Dundee in Anno 1650. where he lost both it and much more of his own at the plunder of Dundee The Pursuer answered no way granting that his Money was lost at Dundee yet it ought not to liberat the Defender because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee and seing he did not then give it it was lost upon the Defenders hazard The Defender answered that any requisition was made was but verbal without Instrument and that it was made to the Defender being in Edinburgh after this Money and the Defenders whole means was sent to Dundee for safety and that at the time of any such desire he shew the Pursuer so and bid him send for it to Dundee when he pleased he should have it The Lords before answer having ordained Witnesses to be examined hinc inde and having advised the same found that the Pursuer did desire his Money and at that same time the Defender told him it was at Dundee and said he might have it when the pleased to send for it and Witnesses also proved that he was at Dundee and was in esteem as a man of good means then and that he was there aâ—the plunder of Dundee and ever since was in a poor miserable condition and some of them deponed that he had a considerable sum of Money far above this in question there The Question was whether this probation was sufficient to assoilzie albeit none of the Witnesses did particularly Depone that they knew the Pursuers Money to have been at Dundee and lost there Tâ—e Lords found that the probation was sufficient the Pursuer giving his oath in Supplement that it was there and lost there for they considered that at the time of the Pursuers Requisition the Witnesses proved the Defender declared it was there and that ex natura rei it was hard to prove particularly this Mony being a Fungible to have been lost there but that it behoved to be presumed so seing the man lost his whole means there and hath been poor ever since Montgomery of contra Eodem die MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter he gave a Back-bond oblieging him to sell the same at the best avail and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother granted by their Father and having retained his own Sums and such as he was Cautioner for was oblieged to count for the rest and being first pursued before the Englishes and now before the Lords he was decerned to take the Lands at sixteen years purchase and a half and to count
accordingly It was alleadged he could not have allowance of the sums payed to the Brother and Sister because these could not exclude lawful Creditors It was answered for Mr. William he had payed bona fide a part and had given Bond for the rest and could not now be called in question It was answered he was in mala fide because the payment was made after intenting of the Reduction against his Right at the pursuers Authors Instance Mr. William answered non Relevat unless there had been a Reason Libelled in that Reduction against these Bonds The Pursuer answered it was sufficient that Reduction was used against the whole Right to which any Reason might be added The Lords found this alleadgence not Relevent to put Mr. William in mala fide unless there had been a special Reason of Reduction filled up and shown to Mr. William against these Bonds particularly Margaret Anderson and Iohn Elphingstoun contra Mary Wachop Iuly 22. 1662. MArgaret Anderson and Iohn Elphingstoun as heir to Anderson who were the two Daughters of umquhil Mr. David Anderson of Hills pursues Mary Wachop his Relict and Executrix to fulfil an Article of his Contract of Marriage bearing That if there were no Heirs-male of the Marriage he band and oblieged him and his Heirs-male and Successors whatsomever to pay to the Daughters of the Marriage 3000. merks and craved that the Executrix as representing their Father might pay the same The Defender alleadged Absolvitor because it is clear by the Clausses of the Contract that the Father did not bind himself simply or himself and his Heirs but that he bound only himself and his Heirs-male which is the more clear that the Narrative of that Clause bears because his Estate is provided to his Heirs-male The Pursuer answered he opponed the Clause by which he did not only obliege his Heirs-male but himself and his Heirs-male and so in oblieging himself he hath oblieged all that Represent him and he might have been pursued in his own lifetime if his Daughters had come to the age appointed by the provision 2ly He has not only oblieged himself and his Heirs-male but his Successors whatsomever and therefore his Executors The Lords found that by the Tenor of the Clause and Narrative thereof the Defuncts meaning was chiefly to obliege his Heir-male and albeit Successors whatsomever was added yet by the Narrative and the order of the Words they found the Heir-male was first burdened and behoved first to be discussed Therefore ordained the Defender to condescend what the Heir-male had to succeed to and if he was not Entered Heir-male and had nothing to succeed to as Heir-male they thought the Defender would be lyable William Montgomery contra Theoder Montgomery Eodem die WIlliam Montgomery as Donator to the Escheat of Theoder Montgomeryâ— pursues a general and special Declarator in on Libel and insists first in the general The Defender alleadges Absolvitor because the Horning is null the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile The Pursuer opponed the Horning standing bearing the Defender to dwell in Edinburgh and the Horning could not be taken away by Exception alibi not instantly veryfied The Lords Repelled the Defense but prejudice of Reduction thereupon Secondly Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming because these fell not under single Escheat It was Replyed the Defense ought to be Repelled because the jus mariti falls under single Escheat of the Husband and carrys with it per consequence the Liferent of the Wife The Lords was clear that the Replâ— was Relevant but the Defense not being competent in the general Declarator which was first insisted in they give no Interlocutor on the Reply Lord Frazer contra Phillorth Iuly 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg at the Instance of the Lord Frazer against the Laird of Phillorth It was alleadged for the Defender Absolvitor because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors Ita est Frazer of Doors had no real Right in his Person never having been Seased at least there is Certification granted against Doors Seasin in the Improbation at the Iâ—stance of the Defender against the Pursuer and his Father so that Doors having no reall Right his Disposition Instrument of Resignation and Câ—arter granted by the King flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit who had Right to Pttsligo's Appryzing of the hail Estate of Phillorth can give no Right to declare the Property especially against the Defenders who hath a real Right by Infeftment flowing from Phillorth his Goodsyre by Resignation and flowing from the Lord Lovit which albeit posterior yet having the first Infeftment is the first and only Right The Pursuer answered the Defense ought to be Repelled because any Right the Defender hath is from his own Grand-Father to whom he was alioqui successurus and thereby the Defender is Successor titulo lucrativo to his Grand-father the common Author after the Disposition granted to Doors and as umquhil Phillorth Doors Author personali objectione would be excluded from opposing Doors Right of Property which Right he had Disponed to Doorsâ— and was oblieged to warrand no more can the Defender who by this same Right he Defends being successor Lucrative to his Grand-Father be heard to exclude the Pursuer who is Successor to Doors 2ly Albeit there be no Seasine yet umquhil Phillorth and Lovit were fully denuded in favours of Doors by the Resignation made in the Kings hands and Charter conform after which any Right granted by them to this Defender is a non haâ—ente potestatem 3ly Any Right the Defender hath flowing from the Lord Lovit cannot defend him because it was but an Appryzing against Phillorth the common Author and it is offered to be proven that the Appryzing was satisfied within the Legal in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly to Frazer of Doors for 20000. merks and the Lands of Innerallothy were Disponed by them to Lovits own Sons irredeemable the price of which Lands being 54000. merks was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties and so as to the Lands of Cairnbulg and remnant Lands appryzed the appryzing is extinct The Defender answered to the first that he is not Successor titulo lucrativo to his Goodsyre because the time of the Disposition by his Goodsyre to him and also the time of his Goodsyres death his Father was alive and served Heir to his Goodsyre 2ly There was no Right in his Goodsyre when he Disponed but all the Right was in the Lord Lovit by Pitsâ—igoes Appryzing neither was Lovit denuded by the Resignation or Charter without Seasine so but that the second Resignation with the first Infeftment is preferable 3ly Satisfaction of the Appryzing as it is alleadged is not Relevant unless
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
are not called this being an Action that in effect terminateth upon a Perambulation or Determining of the Marches It is a Real Action and there is necessity to call the Heirs of Sir Iohn Hope who died last vest and seased in the other adjacent Lands The Pursuer answered that he offered him to prove that Sir Iohn had Disponed in favour of Sir Alexander and resigned in his time It was answered for Sir Alexander that Sir Iohn was not Denuded seing no Infeftment followed and the Disposition is but an incompleat Personal Right so that some having the Real Right must be called The Lords repelled the Defense in respect of the Reply It was further alleadged for Sir Alexander that he had builded a park dyke upon a part of the Ground in Question before the Pursuers Right sciente astante domino the former Heretor having never opposed nor contradicted which must necessarily infer his consent The Pursuer answered that it was not relevant to take away any part of the Property upon such a presumptive consent neither was he oblieged to disassent seing he knew that which was builded upon his Ground would become his own in edificatum solo cedit The Lords repelled this Defense also but they thought that the taciturnitie might operat this much that Sir Alexander might remove the materialls of his Wall or get from Patrick Nicol quantum partem est lucratus by the building of the Wall Murray of Merstoun contra Thomas Hunterr Eodem die MVrray of Merstoun pursues Thomas Hunter fot a Spulzie of Malt who alleadged that as to that member of the Lybel of the Spulzie of the Malt by the Defenders hunding out or command It is only relevant scripto vel juramento The Pursuer answered that she qualified the Probation thus That the Defender intrusted a Messenger or Officer to execute a Precept of Poynding by delivering him the Precept and therefore the Precept with the execution thereupon is sufficient Probation The Defender answered that the same is not sufficient because the Officer execute the Precept extra territorium whereby it became a Spuilzie which ought not to be imputed to the Defender unlesse it were offered to be proven that he ordained the Officer to Poynd this Malt without the Jurisdiction and that only scripto vel juramento The Pursuer answered that as the giving of a Precept of Seasin is a sufficient warrant without any other Procuratry whatever the effect of the Seasin be so must the delivery of the Precept of Poynding be sufficient to instruct the warrand or command to Poynd where-ever the Poynding was execute and the user of the Poynding should be lyable to the deeds done by the person he intrusts Especially seing not only the Messenger was sent but other Servants and Messengers imployed by the user of the Poynding The Lords found the giving of the Precept of Poynding to the Messenger and his unwarrantable poynding Extra territorium not sufficient only but found it relevant to prove by the Messenger and Defenders Servants imployed by him their Oaths that they were commanded to Poynd this Malt or other goods in this place being Extra territorium Skeen contra Lumsdean Eodem die SKeen having charged Alexander Lumsdean for payment of a Bond for which he was Cautioner for Mr. Thomas Lumsdean his Brother Alexander Suspends on this Reason that the Bond was granted for a Bill of Exchange drawn by one Dutch man upon another to be payed to Skeen or his Order which Bill Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean for which this Bond was granted Ita est the saids Bills of Exchange were not payed but protested and is assigned by Mr. Thomas Lumsdean and his Spouse to the Suspender at least if any payment was made to Mr. Thomas Lumsdean the Cedent it was after the Assignation to Alexander Lumsdean the Suspender and intimation thereof It was answered for the Charger that the Reason ought to be repelled because he offered him to prove by Mr. Thomas Lumsdean at that time Factor at Campheir his Compt-book that albeit the Bills was once protested yet they were payed before Assignation or Intimation The Lords before answer having granted several Commissions to the Magistrats and Conservitor at Campheir to view and examine the Compt-book which was at Campheir They reported that in such a Page of the Book there was three Articles of Receipt in part of payment of the Bills after which Pages the Book was containued and several Compts written therein and that it was Authentick and Unvitiat and all written with the hand of Iohn Muire Mr. Thomas Stepson who was his Book-keeper and that they had been a long time since out of Mr. Thomas hands about the time he Bankerupted and that they had examined upon Oath him who drew the Bill amd him upon whom the Bill was drawn both who had sworn payment was made the question was whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney It was alleadged It could not seing it had no more Effect then as Holograph Discharge which might be made up after the Assignation and therefore proves not against the Assigney It was answered that though a Holograph Discharge will not prove alone yet if by other Adminicles Writs or Witnesses it appeas that the Date is true at least is prior to the Assignation or Intimation it will be sufficient against the Assigney so the Adminicles here are pregnant and strong to prove the time of payment contained in the Compt-Book The Lords found the Compt-Book and Adminicles sufficient here against the Assigney especially considering that the Cedent was his Brother and that it was not presumable that he would do any Deed in making up these Receipts in his Compt-Book in prejudice of his Brother Thomas Beg contra Sir Thomas Nicolson Ianuary 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk he Suspends on this Reason the Charger is only Liferenter and hath no right to lift the Sum because the Bond is conceived thus to Thomas Beg and his Spouse the longest Liver of them two in Conjunct-fee and to the Bairns procreat betwixt them which failzing to two Bairns of a former Marriage Thomas and Margaret Begs and which Bond contains a Precept of Seasife for Infefting the said Thomas and his Spouse and the Bairns of the Marriage which failzing the said Thomas and Margaret Bairns of the former Marriage according to which there was a Seasine taken not only to the two Spouses but to the two Bairns nominatim who therefore are Feears The Lords repelled the Reason because having considered the Bond and Infeftment conceaved as aforesaid they found the Husband by the Conjunct-fee to be Feear and the Bairns of the Marriage to be destinat Heirs of Provision and the said Margaret and Thomas to be only substitue as Heirs of Tailzie failzing the Bairns of the Marriage and that therefore if the Father
the Houses The Lords found there was yet place to Resile and therefore assoilzied Margaret Stevenson and her Son contra Ker and others Eodem die MArgaret Stevenson pursues Margaret Ker as vitious Intromissatrix with the Goods of her Husband for payment of a Debt wherein he was Cautioner She alleadged absolvitor because her Iutromission was purged in so far as she had Confirmed herself Executrix Creditrix It was answered by the Pursuer non relevat unless before intenting of the Cause The Defender answered it was sufficient being within year and day after the Defunct's Death Which the Lords found Relevant Lord Balnagoun contra M. Thomas Mckenzie Eodem die BAlnagoun as Donator to the Escheat of his Father pursues Mr Thomas Mckenzie for the price of some Lands sold to him by his Father and for the annualrents since It was answered for the Defender that there was no Annualrent due by the Minute and albeit it was the price of Land yet Balnagoun had never made Mr. Thomas a Right to this day but had forced him to be at a huge Expenses and Plea and so was in mora that the price was not payed and albeitâ—he did possess the Lands it was by redeeming Wodsets thereupon contained in the Minute The Lords found Mr. Thomas lyable either for the Annualrent or for the superplus of the Rents of the Land more then payed the Annualrent In this Process it was found that the Probation of a Tenor before an Inferiour Iudge was null Margaret Edgar contra Iohn Murray Ianuary 29. 1663. MArgaret Edgar having Charged Iohn Murray as Cautioner for the umquhil Viscount of Stormont he Suspends and offers him to prove by her Oath that she transacted with him to accept a Decreet against the principal to free him The Charger answered that she being a Wife clade with a Husband could not swear in his prejudice The Suspender Replyed that before her Marriage he had raised a Pursuit and Cited her to hear and see it found and declared he was free of Cautionry in respect of the said Transaction and so the matter being Litigious her marrying during the Dependence cannot exclude him from his Oath but must work against her Husband who is only jure mariti a Legal Assigney The Lords found this Reply Relevant Scot contra Mr. John Dickson Eodem die SCot as Assigney by her Father to a Bond Charges Mr. Iohn Dickson to make payment he Suspends on this Reason that the Assignation being while the Charger was Wife to Scot her Husband the Sum belonged to the Husband jure mariti and therefore craves Compensation of the like Sums payed to or for the Husband The Charger answered that though the Date of the Assignation was before her Husbands Death yet her Father keeped the same in his Custody and it was not Intimate till after the Husbands Death and so the Right not being Established in the Wifes Person by Intimation could not accresce to the Husband unless the Suspender would instruct that it was Intimate before The Lords found that seing the Assignation was now in the Wifes hands they would not put the Suspender to prove the Delivery thereof during the Marriage but that it was presumed to have been delivered according to the Date and that thereby it became the Husbands jure mariti though no Intimation was in his time Archibald Stuart contra Bogle and Matthie Ianuary 30. 1663. BOgle and Matthie being Conveened before Archibald Stuart as Baillie of the Regality of Glasgow for a wrong committed upon two other Persons in the Kirk upon the Sabbath thrusting in upon them in Seat and beating them they were therefore amerciat in 200. Pounds half to the Party and half to the Fiskall It was alleadged the Fine was exorbitant and that Inferiour Courts could not amerciat above ten Pounds as it had been found by several Decisions It was answered that this Court being a Regality and the Fact so atrocius the Fine was very Competent The Lords Sustained the Decreet Town of Linlithgow contra Inhabitants of Borrowstounness Eodem die THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness in their Town being an un-free man and exercising the Trade of Merchandise they put him in Prison he granted Bond to forbear in all time coming Likeas they fined him in a 100. merks he Suspended and raised Reduction on this Reason that the Bond was extorted when so far as he was summarly taken and put in Prison and could not get out till he promised to give the Bond and immediatly after he was out subscribed the same The Charger alleadged there was no unjust force or fear because by the Acts of Parliament in favours of Free Borrows all unfree men are discharged to exercise the Trade of Merchandise whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom Secondly They and all other free Borrows had immemorially possessed this priviledge to apprehend persons found within their Town and forced them to find Caution as Law will upon Debt due to any in the Town and particularly to put them in Prison till they give such Bonds in Surety as this The Suspender answered to the first there was no such Warrand by the Act of Parliament but only to Charge with general Letters un-free men to find Caution and for the Priviledge of Borrows to arrest un-free persons within their Towns it is only in case of Debts and other Merchandises due to Burgesses but cannot be extended to this Case where there is a special Order set down by Act of Parliament The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men and might judge thereanent but not summarly Incarcerate their Persons but only to Charge them and found their Custom and Priviledge not to extend to this Case and therefore found the Reason of Reduction Relevant The Lady Carnagy contra The Lord Cranburn Eodem die LAdy Anna Hamiltoun and the Lord Carnagie her Husband as having obtained a Gift of Recognition from the King of the Barony of Innerweek and being thereupon Infeft pursues the Lord Cranburn to whom the samine was Disponed by the Earl of Dirletoun Grand-Father to both for declaring the Recognition and the Donatrix Right in so far as Iames Maxwel late Earl of Dirletoun holding the saids Lands of His Majesties Ward and relief had without His Majesties consent Alienat and Disponed the same to Iames Cicile his Oye then second Son to the Lord Cranburn procreat betwixt him and the Earl of Dirletouns second Daughter It was alleadged for the Defender absolvitor because where there was no Infeftment there could be no Alienation nor Recognition and there could be no Infeftment without the same were granted to the Disponer or his Procurator to the accepter to his Procurator but here there was no accepter nor Procurator because Cranburn being then a Child and in England had granted no Mandat to take this Seasine and therefore had raised Reduction thereof
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
general Declarator it were not competent not being instantly verifyed without Reduction 3ly It were not probable but by Writ before the Denunciation and not by the Creditors Oath or having discharges being in prejudice of the KING but that no hazard might be of ante-dating it was required by Act of Parliament that beside the Writ the Parties should depone upon the truth of the Date The Defender answered to the first all Defenses competent in the general Declarator are reserved in the special To the second there is a Reduction depending The Lords found the Defense relevant only scripto of the Denuncer The Defender further alleadged the Horning was null as being upon a null Decreet and falling therewith in consequence The Lords repelled the Defense and found though the Decreet were null through informality yet the Horning would not be anulled but the Partie was in contempt in not Suspending debito tempore Compearance was also made for Mr. William Lauder who alleadged he had Disposition from the Rebel before year and day run The Lords found this Alleadgeance not relevant unless it were alleadged to be for a just Debt before the Denunciation It was further alleadged for Mr. William that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift by his appointment and he offered to satisfye the Donatars Debt and the whole expense of the Gift The Lords found this not relevant without a second Gift or Declaration from the Thesaurer Thomas Crawfoord contra 〈…〉 Eodem die THomas Crawfoord as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors It was alleadged no Process because Thomas as Factor for Robert Inglis had pursued the same Partie for the same Cause before the Commissaries of Edinburgh wherein Litiscontestation was made and so now it cannot be pursued elsewhere but the Process ought to be transferred and insisted in The Pursuer answered that he pursued then as Factor but now as Executor-Creditor who did not consider what Diligence Defuncts did but might insist therein or not 2dly This being a dilator is not instantly verifyed The Lords found the Defense relevant but would not find it competent unless instantly verifyed and because it behoved to be instructed by an Act Extracted Catharine Frazer contra Heugh Frazer February 11. 1663. THe said Catharine only Child of a second Marriage being provided to eight thousand merk of Portion at her age of 14 years but no oblidgment of Aliment or Annualrent till then pursues her Brother as Heir to her Fathers Estate being of a good condition for Aliment He alleadges he was oblidged for none not being Parent nor his Father oblidged by Contract or Bond for it The Lords found an Aliment due for the Pursuers Mother was not alive and able to Aliment her Lockie contra Patoun February 12. 1663. ELizabeth Lockie Spouse to Doctor Patoun pursues a Reduction of a Disposition granted by her Husband to certain Persons as prejudicial to her Contract in which Contract there was a Clause declaring Execution to pass at the instance of certain Persons who concur with this pursuit The Lords sustained the pursuit though it was not for Implement but for Reduction of a Right impeding the benefit of the Contract without concurse of the Husband seing the Process was against a Deed of the Husbands and he called passive Earl of Southesk and Carnegy contra Bromhall Eodem die BRomhall having taken the Lord Sinclar with Caption Southesk and his Son gave Bond to produce him to the Messengers or to pay the Sum. on the third of February betwixt two and ten whereupon Southesk having reproduced him craved by Supplication his Bond up or to be declared satisfied and extinct The Defender answered First He not being a Member or Dependent on the Colledge of Justice cannot be called thus summarily especially to declare a Bond void which is in effect a Reduction 2dly The Bond was not performed in so far as the Lord Sinclar was not reproduced till the 4th of February The Pursuer answered that the Defender living in Edinburgh and not compearing the Bill per modum quaerelae might be sustained To the second it being modica mora of one day without damnage to the Defender and there being trysting amongst the Parties all the time betwixt it was sufficient The Lords sustained the Petition and found it extinct Relict of George Morison contra His Heirs Eodem die THis Relict pursues for Implement of her Contract It was alleadged she had accepted a Wodset in full satisfaction thereof which now being Redeemed she could crave no more but Re-imploying the Money to her in Liferent The Lords found that this acceptance by the Wife being donatio inter virum uxorem she might now revock it and therefore found the Heir lyable to make up what was in the Contract The Town of Linlithgow contra Unfree-men of Borrowstounness February 13. 1663. THe Town of Linlithgow insisted in their Charge upon a Bond granted by some Inhabitants of Borrowstounness oblidging them to disist and cease from usâ—ing the Merchant Trade under the pain of 500 merk which was Suspended on this Reason that the Bond was extorted by unwarrantable force in so far as the Suspenders were taken in Linlithgow brevi manu and incarcerat till they granted the Bond. The Charger produced a Decreet of the Lords in Anno 1643. against several Inhabitants in Borrowstounness compearand who having Suspended the general Letters upon Act of Parliament for finding Caution to desist c. The Letters were found orderly proceeded and the Town of Linlithgow impowred not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness if they medled in Merchant Trading but also bearing with power to put the Persons using the saids Merchant Trade in Prison till Justice were done upon them and thereupon alleadge that the Suspenders being incarcerat by vertue and conform to the foresaid Decreet standing there was no unwarrantable Force used 2dly They produced an Act of the Council of Linlithgâ—w Bearing the Suspenders to have compeared before the Council and to have confessed their wronging of the said Town in the Trade of Merchandize and that there was Horning and Caption against them for the Cause and therefore declared their willingness to grant the Bond in Question The Suspenders answered to the First That albeit the foresaid Decreet bear compearance yet there is no Dispute in it and it is evident to be by Collusion and Surreptitious because this Conclusion now alleadged is ultra petita there being no such thing in the general Letters nor doth the Decreet bear any special Charge given neither is this Conclusion warrantable by any Law or Act of Parliament 2dly This Decreet could be no warrant to Incarcerat the Suspenders because it is given only against some particular Persons then living in Borrowstounness without calling either of the Barron or Baillies of the Burgh of Bâ—rronie and therefore is null as to any other Persons and as to the
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
Author It was answered for the Charger that the Retour could not be taken away hoc ordine by Reduction but behoved to be by a Summons of Error for Reducing the Service by an Inquest of Error to be pursued in Latine by a Precept out of the Chancellary It was replyed that there needed no Service of Error but the Retour and Infeftment might be Reduced unless there had been the question of propinquity of Blood of a nearer Heir which might have made the Inquest an Assise of Error which could not be in this case seing the Inquest had done their Duty who 〈…〉 produced one of the Grandsyres Seasine found him to have dyed last Vest and Seased as of Fee and neither could know nor was oblieged to know that there was a posterior Infeftment to the Defenders Uncle or Father The Lords found the Reduction receivable hoc ordine Hamiltoun contra a Dumb man in Glasgow Iuly 9. 1663. THis Dumb Man having Right to an Annualrent of twenty pound yearly out of a Tenement in Glasgow thereupon 〈…〉 Hamiltoun his Creditor having arrested and obtained Decreet for payment of this Annualrent in Satisfaction of the Dumb-mans Debt It was alleadged for the Person whose Bond was lyable for the Annualrents Absolvitor for five years thereof because he had payed these years to the Dumb-mans Sister by his consent in so far as he Delivered the Money to the Sister in presence of the Dumb-man and obtained her Discharge thereupon in his name subscribed also by him with the initial Letters of his name It was answered non relevat because the Discharge bore not that the Dumb-man received the same but his Sister and bears that she is obliedged to warrant it at the Dumb-mans hand and his presence and seing of Money Delivered and his Subscription cannot import his consent because he being Dumb could not know what the extent of the Sum was nor whatfor years it was The Lords Repelled the Defense in respect of the Reply Mr. Thomas Kirkcaldy contra Mr. Robert Balcanquhil and Heretors of Tranent Eodem die THe Heretors of Tranent raised a double Poynding against Mr. Robert Balcanquhil on the one part and Mr. Thomas Kirkcaldy on the other part both claiming the Stipend of Tranent 1662. It was alleadged for Mr. Robert Balcanquhil he ought to be preferred because he was Minister at Tranent by Presentation and Collation long anterior to Mr. Thomas Kirkcaldy and albeit he was Deposed in Anno 1648. yet he was Reponed by the Bishop of Edinburgh and Synod of Lothian in October 1662. because of that Narrative that he was unlawfully Deposed in Anno 1648. and so being Reponed before Martinmass 1662. he thereby must have Right to the half due at Martinmass 1662. It was answered for Mr. Thomas Kirkcaldy that Balcanquhils Repossession being after Michaelmess 1662. which is the Legal Term of Stipends and he having Served till that time by a Title standing Reposition can operat nothing before its Date and so cannot reach to Michaelmass Term The Lords preferred Mr. Thomas Kirkcaldy to the hail year William Hay contra Iohn Nicolson Iune 16. 1664. JOhn Nicolson having granted an Assignation in Anno 1653. of a Bond granted to him by Iames Crightoun Sheriff of Nithisdail principal and umquhil William Livingstoun Cautioner the name of the Assigney was left blank till 1663. at which time William Hayes name was filled up and which Assignation contained a Clause of Warrandice against all deadly as Law will William Hay having used Execution on the Assignation against the Principal and Cautioner in the Bond returns upon the Warrandice and Charges Nicolson who Suspends on this Reason that the Clause of Warrandice as it is conceived in the Assignation could import no more then that the Debt Assigned was a real Debt resting and not to be Evicted by any other Right Especially seing it did not bear expresly to warrand it to be good valide and sufficient which might infer to warrand not only that the Assignation should clear the Right of the Debt but that the Debitor should be solvendo And secondly considering that there is no onerous equivalent Cause for granting the Assignation Nicolson the Creditor might have Discharged Livingstoun the Cautioner and given him an Assignation that he might thereupon Charge the Principal The Charger opponed the Clause of absolute warrandice which have ever been esteemed to reach to the Debtors being solvendo The Lords found the Claúse thus concieved could not extend to the sufficiency of the Debtor Thomson contra Reid Iune 15. 1664. JAmes Thomson in Cryle having Appryzed certain Tenements in Edinburgh from Iames Sinclar pursues Iames Reid as one of the Possessors for Mails and Duties who alleadged that he had bruiked by Tack from Iames Sinclar before the Appryzing which Tack bare 80. pound of Tack Duty and to continue for seven years and bare expresly a provision that the said Iames Reid should retain the Annualrent of 600. merks adebted to him by Sinclar as a part of the Tack Duty and that he should not be removed untill the said 600. merks were payed The Pursuer answered that the alleadgence was no way Relevant to accompt the payment of the 80. pounds of Tack Duty to the Pursuer out of which the Defender could have no Retention of his Annualrent because that is but a personal provision adjected in the Tack and no part of the Tack and can work no more then if such a Provision had been made out of the Tack in which Case it would only have been a part of the Tack Duty in Compensation of the Annualrent as an Assignation would not be effectual against a singular Successor and would endure no longer then the Land was his who assigned the Duties So now the Land ceassing to be Sinclars the Assignment or Alocation thereof to be retained for satisfaction of the Annualrent is not Relevant against this Appryzer no more then that part of the Clause by which the Defender is provided not to remove till his Sum be payed which was never sustained to be effectual against a singular Successor The Defender answered that this Defense stood Relevant because the Clause of Retention is adjected immediatly to the Tack Duty and so is as a part thereof and so is real and Effectual against a singular Successor because if Sinclar had set the Tack for a grot it would have been valid and therefore might more set it for the satisfaction of the Annualrents and so much Duty further The Lords Sustained the Deâ—ense that seing there remained a Tack Duty over and above the Retention of the Annualrent and that the Tack had a particular Ish of seven years that it was valid but found the Case dubious if there had been no Tack Duty over and above the Annualrent but that the Land had been either set expresly for satisfaction of the Annualrent or for such a sum equivalent thereto to be retained In which case the Tacks would want a Tack Duty
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
they searched for him immediatly after The Lords Repelled both Defenses seing the Escape was in day light during which the Towns Officer should Guard the Prison Elizabeth Nisbet Lady contra Murray Eodem die ELizabeth Nisbit pursues a Poinding of the Ground of certain Lands wherein she was Infeft by Iames Wood her Husband Compearance is made for Patrick Murray who alleadged that he is Infeft by her Husband his Debitor in the same Lands and ought to be preferred It is answered for the Lady that she ought to be preferred because both their Annualrents being base albeit her Infeftment be posterior Yet her Husbands Possession being her Possession and she being Infeft before Patrick Murray's Infeftment was cled with Possession must be preferred It was answered for Patrick Murray First That a Husbands Possession should be the Wifes Possession cannot be understood in an Annualrent because her Husband never Possessed an Annualrent but the Property This the Lords Repelled and found the Possession of the Property as jus nobilius to contain the Annualrents eminenter 2ly Patrick Murray alleadged that the Husbands Possession being the Wifes is only introduced in favours of Contracts of Marriage favore dotis That because Wives cannot Possess during their Husbands life therefore his Possession is accompâ—ed theirs But this Infeftment in question is not founded upon the Contract of Marriage but upon a posterior Charter of a different Tenor. 3ly Patrick Murray used citation before Câ—ndâ—esmess next after the Ladys Infeftment and thereupon obtained Decreet in March which must be drawn back to the Citation So that the Husband could have no Possession betwixt the Ladys Charter and his Diligence there being no interveening Term. It was answered for the Lady that this Priviledge is allowed to Wifes that their Husbands Possession is theirs during their Marriage favore datis which may be without a Contract 2ly The Husband being in present current Possession from the very Date of the Wifes Seasine his Possession is sufficient to validate hers The Lords found the Ladyes Infeftment to be first validat by Possession It was further alleadged by Patrick Murrayâ— that this Infeftment was donatio inter virum uxorem not being founded on the Contract of Marriage which was satisfied before at least it is to the prejudice of him a lawful Creditor who was Infeft before the Lady and therefore seeing the Ladys Infeftment is so free and lucrative both parties being now Disputing the Possession and power therein The Ladys Infeftment cannot prejudge him That the Contract of Marriage was satisfied he condescends thus that the Husband was oblieged to Infeft his Wife in certain Lands and to make them worth 18. Chalders of Victual or otherwise at her option to Infeft her in an Annualrent ita est she made her option and was Infeft in the Property after which she cannot return to this Annualrent in question It was answered for the Lady that the Clause being conceived in her option must be Interpret her option not to receive the Infeftment but to enjoy either of the two she pleased First A Seasine cannot import her choise which might have been given by her Husband without her knowledge upon the Preccept contained in the Contract of Marriage unless it were instructed that she did accept the same by a Seasine propriis manibus or otherwise and that her Infeftment was a valid effectual Infeftment 3ly Albeit that Article of the Contract of Marriage were satisfied by taking her choise yet she being thereafter Infeft upon her Charter produced in her Liferent Lands and in the Annualrent in Warrandice thereof or with power to her to make use of the Annualrent it self principaliter at her option albeit her choice once made will exclude her from the annualrent principaliter yet not in so far as she is Infeft therein to warrand and make up the principal Lands which can be accounted no Donation nor Deed in prejudice of a Creditor because it doth but make real and effectual the personal obliegement of warrandiceâ— contained in the Contract It was answered for Patrick Murray that this alleadgance non competent hoc loco but he must only poind the Ground until the Lady obtain a Declarator of what is defective of her Liserent Lands but cannot come in by way of Reply The Lords found that the Ladys acceptance of the Liferent Infeftment satisfied the obliegement in the Contract of Marriage and did not sustain the posterior Charter to give her any further choice but sustained the Right of annualrent constitute therein in warrandice of the Liferent Lands hoc loco and ordained the Lady to condescend upon the several Rooms what they payed and what was wanting that she might be preferred in the first place and Patrick Murray in the second place Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange Eodem die ALexander Livingstoun as Assigney by Mistriss Margaret Forrester and Sornbeg her Husband to some Debts owing to her by her Father The umquhil Lord Forrester having Charged the remnant Daughters and Heirs of Line craves Adjudication of the Estate of Forrester and Barony of Grange wherein the Lord Forrester Died Infeft Compearance is made for a Creditor of Grange who produces a Back Bond granted by the Lord Forrester to the Laird of Grange bearing that the Infeftment was in trust to the use and behove of the Laird of Grange and only to the Lord Forresters behove for Relief of Debts he should be ingaged in for Grangeâ— and alleadged that he being Granges Creditor and now insisting against Grange who has renunced to be Heir for Adjudging of the Estate of Grange for Granges own Debt he has good Interest in this Process to alleadge no Adjudication of Grange Estate because it is only in Trust except in so far as may be extended to my Lord Forresters Relief and if the Pursuer condescend upon any Distress or Ingagement he will instantly relieve the same The Pursuer answered that he being now in an anterior Diligence to this Party ought not to be stopped in his Diligence but must be admitted to Adjudge from the Lord Forresters Heirs whatever was in his Person And the other Party may also proceed according to his Diligence to Adjudge the Back Bond and when he pursues thereupon he shall have an answer 2ly There is no reason to stop the Adjudication and to force the Pursuer to condescend upon my Lord Forrestersâ— Debts or Interest because a Creditor cannot possibly know them and therefore Adjudications are always granted generally of all Right the Debitor had and is the only ground upon which the Adjudger can pursue the havers of the Debitors Rights to Exhibit and Deliver them and thereupon to found Processes and Condescendences but cannot be urged to condescend before he obtain Adjdication and also insinuat that he would take his Adjudication with the burden of the Back Bond But some of his Advocats resiled therefrom The Lords having considered the Case
and salted them themselves to be proven by their Oaths and would not sustain the Probation of the Custom seing the principal Decreet was not produced unless that at least the Testimonies proving that Custom were repeated and produced out of the old Process that it might appear whether there were any ground of Objection against the manner of Probation Lady Colvil contra Lord Colvil December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt hererable and moveable of the Defunct his Predecessor because the Defunct in his Testament had named her his Lady Executrix and universal Legatrix with a special Clause that she should be free of all his Debt whatsomever The Defender alleadged Absolvitor because no Deed done by a Defunct in lecto or in Testament can prejudge his Heir The Pursuer replyed that this Testament was made in the Defuncts leige poustie The Defender answered that on Death-bed and by Testament equiparantur Which the Lords found Relevant and assoilzied Laird of Phillorth contra Forbes of Aslocon December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon and having obtained general Declarator insists in his special Declarator It was alleadged Absolvitor because the Horning whereupon the Gift was granted is null in so far as being beyond Dee it is upon six dayes contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee on less then fifteen dayes null conform to a Decision in Dury albeit on a Bond bearing a Clause of Registration on six dayes onlyâ— February 14. 1625. Steuart contra Bruce It was answered for the Pursuer that the Acts of Parliament hinder not the agreements of Parties but is expresly anent Hornings on Lawborrows or the like but these are on the parties own consent by the Clause of Registration and if these should not be valide all the Hornings and other Executorials thereon beyond Dee since 1600. would be null and such Bonds would have no effect seing upon the Clause of Registration Horning could not be otherwise direct on six dayes and so they should not have any summar execution The Defender answered that the Act is general of all Hornings and bears a general Reason because it is impossible for Parties at such distance to come to Edinburgh to Suspend in four dayes and privat pactions cannot derogat from general Laws where the express reason is for publick utility contrair to which no man can make himself Rebel more then he can give power to Incarcerat himself where Law gives no warrant but prohibits The Lords Repelled the Defense and sustained the Horning Innes contra Forbes of Touchon Eodem die INnes having Charged Forbes of Touchon on an Act of Adjournal for an Assythment for wounding him and reparation of his Blood He Suspended and alleadge the Act was null wanting Citation Compearance or probation It was answered that being the Act of the Justice General who is Supream in criminalibus it cannot be recognosced by the Lords The Lords having considered the case amongst themselves thought that in what was truly Criminal as to corporal pains or amerciaments in way of punishment they would not medle with the Justice Sentences but Assythment being civil for the Damnage and Interest of the Party pursuable before the Lords they might recognosce thereon and therefore in respect that the Probation of the Fact was by a Process before the Baillies they ordained that Process to be produced before answer and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment Mr. Thomas Paterson contra Watson December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib who alleadged the Designation is null because it is not subscribed by the Ministers Designers but is only the assertion of a Nottar 2ly By the Act of Parliament 1663. anent Gleibs there is an exception of Royal Burrows to which Ministers Gleibs are not due ita est Dysert is a Royal Burgh The Charger answered to the first that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine to give Right to Land And to the second the Royal Burrows excepted must only be understood of such who have not a Landwart Congregation but are chiefly constitute of an Incorporation for Trade but this Burgh is notourly known to be but a Burgh of Barony holden of the Lord Sinclar albeit it has the priviledge of Vote in Parliament and is a Parsonage The Lords Sustained the Designation but before Extract ordained the Testificat of the Ministers Designers under their hands to be produced Sarah Blomart contra Earl of Roxburgh SArah Blomart pursuing the Earl of Roxburgh he alleadged she could have no Processes being of the Vnited Provinces who are declared enemies to His Majesty It was answered that there was no Denunciation of War by His Majesty as King of Scotland nor any Proclamation in Scotland to that purpose It was replyed that there was a Warrant by the King and Council to cease upon all the Dutch Vessels in Scotland The Lords found that this was but an Imbargo and no Denunciation of War in Scotland and therefore found Process Mr. Iames Reid Minister of North-Leith contra William Melvil December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish bought by the said William in the Lewes and imported by him at Leith He Suspends on this Reason that he bought the said Fish from Merchants in the Mercat and did neither take the same himself nor bought them immediatly when they were green from the Taker and so can be lyable for no Teind The Charger answered that he is decennalis triennalis Possessor of getting twenty shilling of the Last of all Fish imported at New-haven and for instructing thereof produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis offers him yet to prove Possession The Defender answered that these Decreets are expresly against the Fishers or Takers of Fish but not against Merchants buying and importing the same and as for the Custome non Relevat unless it were an universal Custome established by Sentences for if some few Merchants should have to save themselves trouble given an uncertain acknowledgement according to their own discertion and no fixed Duty nor by no compulsive way it imports not The Lords Suspended the Letters except only for such Fish as should be taken by the Boats and Fishers of New-haven Agnes Young and her Husband contra Buchanans Eodem die AGnes Young pursues Buchanans her Children for her third of her Husbands Moveables and for her Liferent use of the other two thirds conform to her Contract of Marriage whereby she is provided to his Liferent of all Goods and Geir conquest during the Marriage moveable and immoveable The Defenders answered that the Pursuer cannot both have the third and the Liferent of the whole because it must be presumed
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary â—but in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâ—â—â— upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
were Infeft yet there may be Inhibition anterior Reversion or Trust or nullities in their Right and if these were denyed they behoved to be instructed and so Terms of Probation run while in the mean time the anterior Diligence of others Appryzings in the countrey before the Sheriff would prevent them and it would hinder any Appryzings ever to be deduced at Edinburgh and it were hand to put Creditors who knew not there Debitors Charter Chist to disput their Rights as in an executive Process But the Lords inclined that Sir Johns Infeftment should be rather produced and reserved out of the Appryzing then the Appryzing stopped Falconer contra Earl of Kinghorn Eodem die FAlconer pursues the Earl of Kinghorn for payment of a Bond wherein his Father was Cautioner It was alleadged the Bond was null as to Kinghorn because it mentioned in the first place three Witnesses to another Parties Subscription per expressum mentioning two without their designation or expressing whether they were Witnesses to either or both the two Cautioners and therefore the Bond was null by the Act of Parliament It was answered that according to the ordinar custome they offered to design It was Replyed that the designation behoved to be of living Witnesses for seing in it self the Bond is null by the Act of Parliament and that the Lords by custom have supplyed such Bonds per equivalentiam The intent of the Act of Parliament being only that by the Designation the Witnesses might be known and thereby a means of improbation afforded if the Writ were quarrelled but after the Witnesses are dead the Degsination of them cannot attain that effect The Lords Ordained the Pursuer to Design living Witnesses or otherways to condescend upon other Adminicles to astruct the verity of the Subscription of the Bond. Beg contra Beg. February 4. 1665. THomas Beg in Edinburgh having a Son of his first Marriage and providing his Children of two subsequent Marriages to his Means The Son of the first Marriage pursues his Father for his Mothers third and craves Annualrent therefore he being Minor and his Father his Tutor of Law and therefore lyable as other Tutors for Annualrent Which the Lords found relevant Paterson contra Pringle Eodem die ISobel Paterson having lent to Pringles Wife a 100. lib. scots and having received a Bond of Pringles in Pand thereof he thereafter seeking a sight of the Bond took it away without warrant whereupon she obtained Decreet against him before the Commissaries which He and his Wife Suspended on this Reason that he never borrowed any Sum from the Charger and if his Wife did borrow the same he knew nothing thereof or that it was applyed to his use and that she Impignorat his Bond without his knowledge or warrant The Lords found that her having of the Bond in her hand did infer a warrant to borrow the Money and oblidge her Husband being a matter of small importance Peter Pallat contra Thomas Fairholm â— February 7. 1665. THomas Fairholm Merchant in Edinburgh having written a Letter to Peter Pallat Factor at Burdeoux to Loaden him 30 Tun of Wine The tenor of the Letter is that in respect Fairholm was not acquainted with Pallat he had written upon the Credit of his Brother Ninian Williamson Factor at London who was Pallats ordinar correspondent to Load these Wines in that Ship which carried the Letter upon Fairholms accompt and bore That Williamson had Provisions to satisfie the same and that he would either remit to Pallat or draw upon him as he found convenient This Letter being sent under a cover of Williamsons to Pallat the Wines were sent into Scotland and Williamson broke about a year thereafter whereupon Pallat pursues for his Money from Fairholm who alleadged absolvitor because he having demanded the VVines not upon his own Credit but Williamsons and Williamson having sent under his own cover as Pallaâ—s Letter bears the said Order in which there being mention that Williamson had Provisions in his hand his sending the Letter of that Tenor under his own cover is an acknowledgment that he had those Provisions and thereby he constitute himself Debitor to Pallat and freed Fairholm likeas Pallat acquiesced therein and drew Bills upon Williamsonâ— which were accepted but not payed and was silent never demanding Money from Fairholm till Williamson was broken so that first Fairholm is free by the tenor of the Letter and next though thereby he had been bound yet the damnage sustained by Pallats silence till Williamson was broken whereby Fairholm was hindred to draw his Provisions out of Williamsons hand and thereby lost the same through Pallats fault ought to compence Pallat and exclude him Pallat answered to the first that he opponed the Letters which bore expresly the Wines to be sent for Fairholms accompt so that albeit it mention Williamsons Credit and that he had Provisions it makes him but expromissor and liberats not Fairholm as to the second anent the damnage Pallat being secured both by Fairhlom and Williamson might at his option take himself to either or to both and cannot be accompted to have done any fault in forbearance of either though an unexpected accident of Williamsons breaking interveened so much the more as Fairholms Letter does not order to draw upon Williamson but bears That Fairholme would either draw or remit at Williamsons conveniency So that Pallat has not failed in the strick observance of the Order And if need be Pallat offers him to prove by the custom of Merchants in the most eminent places abroad that such Letters did never liberat the Writer And Fairholm offered to prove that such Letters did liberat the Writer unless the receiver had protested and intimat to the Writer that he would not acquiesce therein simply but also in the Credit of the Writer The Lords found that the Letter did not liberat Fairholm notwithstanding of his forbearance to demand and therefore repelled the Defenses and decerned but liberat Fairholm from the exchange and re-exchange in regard of Pallats silence neither would the Lords delay the matter upon the opinion of Merchants David Graham contra George Bruce and Doctor Mairten Eodem die DAvid Graham upon the sight of a Bond unregistrat of George Bruces obtained Arrestment and therewith Arrested a Sum in Doctor Martines hand which was loosed and after the loosing Assignation being made by George Bruce to his Sister In which case the Lords found That the Arrestment being upon the Bond before Registration might be loosed and notwithstanding of the loosing seing it was not now payed by the Debitor they ordained it to be made forthcomand to the Arrester and preferred him to the Assigney albeit it was alleadged that the tenor of the Arrestment was but till Caution was found which being found albeit the Debitor could not oppose to make it forthcoming yet an Assigney after loosing the Arrestment may let The Lords considered that the Caution found in loosing Arrestments is overlie and insufficient
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
without any burden and Liferenters who having a speciall Competent Provision this general Clause being but adjected as uncertain is not so favourable or so to be extended seing the Husband did not Infeft the Wife in his own time in the Conquest And therefore found her to be lyable to the Annualrent of this Sum which they found instructed by the Hubands Declaration where the Ladies Father is a subscribing Witness Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die WAlter Young Iohn Govan and Hendrie Hope by a Letter written to any that they should Buy Kows from in the Highlands desired that they might use the Bearer of the Letter kindly and for whatever quantity of Kows they bought they should answer such Bills as he should draw upon them therefore Hendrie Hope being broken Iames Gray as Assigney pursues the other two for the whole who alleadged they were only lyable for their own Parts It was answered that they were oblidged to answer such Bills as the Person intrusted by them should draw and they produce a Bill drawn by him upon them or either of them It was answered that such Bills can only relate to the Quantity and not to the Quality and manner of oblidging seing if they had so intended they would have oblidged them and either of them or it would have born what he should draw upon them or either of them should be answered The Lords found every one of them lyable in solidum for they thought that the Clause being dubious was to be interpret against the Writers and the Sellers of the Kows were bona fide to rest upon the interpretation of the Persons intrusted Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665. SIr Iohn Leslie as Assigney constitute by Sir William Dick to a Bond oblidging Francis Sinclar as Principal and young Dun as Cautioner to deliver 30 Chalders of Bear at 10 merk the Boll Dun alleadges absolvitor because he was Minor in Familia Paterna and so his Father was his Curator of Law and therefore his subscribing as Cautioner was null being without his Fathers consent It was answered the alleadgeance was not competent by exception against a clear liquid Bond. Secondly That the Defense is only competent in the Case of Curators chosen The Lords found the Defense Competent by way of Exception but before answer to the Relevancie ordained the Parties to condescend upon Duns age the time of his Subscription and whether he did then administrat or go about any other affairs Dame Rachel Burnet contra Lepers December 23. 1665. BY Contract of Marriage betwixt Mr. Iohn Leper and his Father and and Dame Rachel Burnet on the other part both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel who with concurse of Prestoun her present Husband pursues the Sisters of the said Mr. Iohn Leper as Heirs and otherwayes representing him and their Husbands for their entrests and likewise Doctor Balfours Wife only Daughter of an of the Sisters as Heir to her Father and Mother against whom there was Decreet of Registration obtained during their Lifetimes together and on this ground That the Defuncts Husband did by Contract of Marriage Disposition or otherwayes obtain Right to the Portion of his Wife one of the Sisters and Heirs and therefore is lyable in payment in quantum lucratus est It was alleadged for Doctor Balfour and his Wife that she was willing to renounce to be Heir to her Mother but as for the other passive Title as representing her Father who was locupleâ—ior factus it is no wayes relevant for Marriage is a cause onerous and Tochars are granted ad sustinenda onera matrimonij and therefore are never counted fraudulent deeds or without an onerous cause nor do they fall within the Act of Parliament 1621. against fraudful alienations neither was the Defenders Father lyable though there was a Decreet of Registration against him because before any Execution the Marriage was dissolved It was answered for the Pursuer that that member of the Lybel stands relevant because the Defenders Mother being Heir to her Brother the Contracter could not transmit her Estate to her Husband without the burden of her Brothers Debt and it is a most unquestionable Ground in Law and Equity quod nemo debet cum alieno damno locupletari and therefore Creditors are still preferred to Portions of Children though given for their Tochar The Lords found that Member not Relevant that Decreet was obtained against the Husband and Wife stante matrimonio seing it received not Execution and as to the other Member they thought that if there were but a moderat and ordinar Tochar proportionable to the burdens of the Marriage it would not infer Repitition or if the Tochar was great or an universal Disposition of all the Heirs Right they thought the Husband would be lyable in so far as it was above a proportionable Tochar and therefore before Answer Ordained the Contract of Marriage to be produced and the Pursuer to condescend if there was any other benefit accresced to the Husband by his Wife then by vertue of the Contract It was further alleadged for the Lady Pitmedden one of the Sisters on Life that she could only be lyable for her own sixth part as one of the six Heirs Portioners It was answered by our Law that all Heirs were lyable in solidum There was several Decisions alleadged on either hand on the 7. of February 1632. Hoom contra Hoom Where the Lords found the Heirs Portioners lyable but for their own share Another February 15. and March 21. 1634. Watson contra Or Whereby one of the Daughters having a Disposition of the whole Estate was found lyable for the whole Debt And another Ianuary 24. 1642. Where one of the Heirs Portioners having Disponed her share to the other and thereby being insolvent that other was found lyable in solidum The Lords having considered the Case found the Heir Portioner lyable iprmo loco only for her own share untill the rest of the Heirs Portioners were discust but determined not whether these who were solvendo should be lyable in solidum albeit the Debt exceeded their Portion or only intirely for their own share and for as much more as the value of their Succession could amount to Laird of Cesnock contra Lord Bargany Eodem die THE Laird of Cesnock and the Lord Bargany and Balcarras being bound conjunctly and severally in a Bond Cesnock being distressed for the whole takes Assignation and pursues Bargany for two thirds who alleadged payment and because it was a publick Debt he produced an incident in termino which the Lords sustained not because it buire no warrand to cite Cesnock the Principall Partie and the Executions were within 48 hours by one Person in Kyll Renfreu Fyfe and Edinburgh and so suspect but they superceeded Extract of the Decreet to the first of November contra Wilson and Lodwick Callender
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ— a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ— contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâ—tior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâ—wer of Deputation which they found not to be annulâ—eâ— by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
prejudged as to the constituting an Annualrent in the point of Right not being called yet as to the Point of Possession the Right being constitute he might 3dly Albeit the Heretor must be called when his Ground is first affected with an Annualrent in attinenda possessione yet if the Annualrenter be in possession he may continue the same without calling the Master as well as in Tyends Thirlage c. And here the old Precept of Poynding was evidence sufficient of a prior Possession in re tam antiqua The Lords found that the Decreet was Possession sufficient to interrupt Prescription Minister of contra Lord Elphinstoun Iune 16. 1666. MInister of pursues the Lord Elphinstoun for the Viccarage Teinds of his Lands in his Paroch It was alleadged absolvitor because he brooked these Lands by immemorial possession without paying any Viccarage and so had prescribed Exemption and Liberty It was answered that the Viccarage being due de jure cummuni desuetude cannot take them away nor can any Prescription give Right to them unless it were by a Title as if the Lands had been Templar Lands or belonging to these Orders which payed no Teynds but were exempted by the Cannon Law and therefore in the last Session it was found in the Case of the Earl of Panmoor that 40. Years did not prescribe the Right of Parsonage except for the Years preceeding the 40. It was answered that there was a great difference betwixt Parsonage and Viccarage which is Local and Consuetudinary which is therefore only found due according to what has been accustomed to be payed so that the Teynd of Lint Hemp Geess Stags Swine Fruits Fishes are only due in these parts where they have been so accustomed and therefore as custome may take away a part so it may extinguish the whole The Lords found the Defender could be no furder lyable then for that Viccarage which was commonly payed throughout all the Kingdom viz. Stirk Lamb and Wool and sustained not the same for Milk or any other particular But the Defender upon the twenty one of Iune having Supplicat to be further heard alleadging that it was a common Case that when the Lands were most in Labourage and the Viccarage small and not considerable that through the whole Country Viccarage was never craved time out of minde The Lords stopped Interlocuquutor till they were further heard Thomas Begg contra Patrick Nicoll Iune 22. 1666. THomas Begg gave Commission bearing that he had delivered a certain Sum of Money to Patrick Nicoll to buy Wair for him in England whereunto there is subjoyned the said Patrick his acceptance bearing Sea hazard excepted Thomas Begg now pursues for the Money or Wairâ— Patrick Nicoll alleadged absolvitor because he offers him to prove that shortly after the said Commission he went upon the Voyage and that the Ship was taken and the whole Goods there wherein it must be presumed the Pursuers Money was It being impossible for the Defender to prove that that individual Money was there and yet he is willing to make faith that it was there It was answered that the Defender had Factor-fee and should have transmitted the Money by Bill as he did some of his own and at least he might prove that he had a considerable Sum of Money in the Ship The Lords sustained the Defense and Repelled the Reply and that the Defender being trusted by the Pursuer he could not refuse his Oath in Supplement that his very Money was taken seing he neither might nor could show what money he had when he entrèd to his voyage unless the Pursuer alleadged that he gave the Defender allowance for the Exchange Earl of Eglingtoun contra Laird of Cunninghamhead Iune 23. 1666. THE Earl of Eglingtoun pursues the Laird of Cunninghamhead for the Teynds of Peastoun who alleadged absolvitor for 60. libâ— Yearly which by Decreet of the Plat he payed to the Minister of Irving and produces the Decreet It was alleadged that where the Decreet bore out of the Teinds it was meer Error of the Clerk and disconform to the ground of the Decreet which was a tripartite Contract whereby the Earl of Eglingtoun agreed for so much Victual out of his Teynd beside what was to be payed by the Town of Irving and Heretors and the Heretors oblidged them and their Heirs and Successors of these Lands to pay so much Money which cannot be understood out of their Teynd they being oblidged as Heretors and the Teynd not being theirs but the Earl of Eglintouns who was oblidged so much out of his Teynds besides these oblidgments It was answered that this being to lay a burden of Stipend upon the Stock is most unfavourable and the meaning thereof cannot be inferred unless it had born expresly out of the Stock especially seing the Teynd was under Tack and it was ex gratia for them to pay any more then their Tack-duty but now when the Tacks are expired the Earl cannot crave the whole Teynd and lay this burden upon the Stock 2dly The Lords cannot alter the express tenor of the Decreet of Plat which was a Commission of Parliament The Lords found that the tripartite Contract as to this did not burden the Teynds and therefore seing the Plat could only decern out of Teynds they found that by this Contract the Heretors behoved to relieve the Teynds of this burden out of their Stock Arbuthnet contra Mary Keith Eodem die Andrew Arbuthnet having gotten a Gift to the behove of the Viscount of Arbuthnet of the Marriage of the Heirs of Iohn Keith of Pâ—tten did thereupon pursue the two Heirs Portioners one of them being dead he insists now against the other for her part who alleadged no Process because none was called to represent the other who is thus far interessed that the Probation of the avail of the Marriage against the one will prejudge the other The Lords Repelled the Defense and found it would not prejudge the other against whom new Probation behoved to be used Patoun and Mercer contra Patoun Eodem die JOhn Patoun as Heretor of the Miln of Mukart pursues for the abstracted Multures and alleadges that the Miln is the Miln of the Barony and the Lands a part of the Barony and that they being in immemorial Possession of Intoun Multures of one peck of the Boll and that above thirty years ago there was a Decreet arbitral by the Marquess of Argyle Decerning these Multures The Defenders alleadged Absolvitor because they were Infeft before the Pursuers Right produced cum molindinis and as to the Act of Court the whole Tennents were not present and the Decreet Arbitral it is under Reduction The Lords sustained the Pursuers Condescendence reserving the Reduction as accords Masson contra Iune 27. 1666. MAsson pursuing a Declarator of Escheat It was answered that all Parties having Interest were not Cited at the Mercat Cross conform to the Warrand of the Letters It was answered that was but stilus curiae long indesuetude and
Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ— acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself
of Parliament and stented the same upon the Parochioners and others They did Supplicat the Lords for Letters of Horning conform to the stent Roll in respect that the said late Act of Parliament being the twentieth Act of the third Session of the last Parliament bears no warrand for Horning The Lords ordained Letters of Horning to be past Sir Alexander Vrquhart contra Sherem Eodem die IN anno 1636 Sir Thomas Vrquhart of Cromerty gave a Security of a House and some Lands and a Salmond-fishing near Bamff for 4000 merks and in anno 1637 There was 700 merks eiked and a Back-bond relating to the first Wodset Renounced and a full Possession granted on both There is a Clause of Redemption and Requisition upon payment of the principal Sums and Annualrents resting for the time Sir Alexander Vrquhart pursues Sherem as now having Right to the Wodset for Compt and Reckoning Who alleadged Absolvitor because this being a proper Wodset wherein he had the full Possession hazard of the Profits was not comptable especially seing the chief part of the Wodset was a Fishing which was most uncertain and though de facto he happened to get much more then his Annualrent yet it is no Usurary Wodset seing he might have losed all The Pursuer Replyed that by the saids Clauses of Redemption and Requisition he was not only obliged for the principal Sums but for the bygone Annualrents resting unpayed so that the Wodsetter had no hazard and therefore it is no proper Wodset and he is comptable The Defender answered that the Clause was only adjected ex stylo for it did not bear that what Annualrent should be resting over and above Intromission should be Consigned but the whole resting Annualrents or at least it had been adjected in respect of the Back-bond restricting the first Wodset or in case the Wodsetter had been excluded from Possession The Lords found the Defender comptable in respect of the saids Clauses but there occurred to themselves this question whether the Superplus more then the Annualrent should compense and abate the principal Sum at the time of the Intromission or only now whereanent the Lords were of different opinions many thought that when the meaning of the Parties was not full and express that should be followed which is most ordinar amongst provident Persâ—ns hardly could it be thought that any would take a Wodset upon these Terms to draw out the principal Sum with excress yearly but the Lords reserved that Point to be considered while it appeared whether there was any excress above the Annualrent Monteith contra Laird of Gloret Dec 7 1666 IN a Competition between Monteith and the Laird of Gloret It was alleadged for Monteith that he ought to be preferred to the Sums in question because Glorets Assignation was obtained by Hamiltoun of Kinglass and was lying by him blank in the Assigneys name and by him filled up with Glorets Name and delivered to him so that Kinglass being his true Author any Discharge granted by him while the Bonds were blank and in his power was relevant against Gloret his Assigney Ita est Kinglass while or before the Bonds were in his power did equivalent to a Discharge viz. oblieged himself to pay this Sum and relieve the principal Debitor thereof and instead of the Discharge he took this blank Assignation filled up by him in Glorets Name 2ly The Charge though in Glorets Name is to Kinglass's behove and if he were Charging his Obliegment to pay the Debt would exclude him And therefore must exclude the Charger It was answered that Gloret was in bona fide to take this Assignation knowing nothing of the Back-bond and that an Obliegment to satisfie the Debt was not equivalent to a Discharge Neither is the having of the Assignation though blank equivalent to an Assignation unless the Name of Kinglassie had been filled up and Intimat The Lords having taken Glorets Oath before Answer wherein he acknowledged that he got this Assignation from Kinglassy and payed no money for it and that it was on these Terms Kinglassie being owing him a greater Sum he was to allow what he got by this Assignation in part thereof but Deponed he knew not if it was blank when Kinglasse had it or not The Lords found that the Assignation being accepted by Gloret in Terms aforesaid that it was but a Corroborative Security and so found the Assignation to Kinglassies behove and found the Back-bond Relevant to exclude him and therefore preferred Monteith Sir George Mckenzie contra Fairholm Eodem die SIr George Mckenzie Advocat pursues a Reduction of a Bond granted by him as Cautioner for his Father the Bond is now Assigned to Iohn Fairholm on these Reasons First That the Bond is null as being done by a Minor being in his Fathers Family and not being Authorized by his Father as lawful Administrator And therefore in the same condition as a Minor having Curators they not Confirming such Deeds are null and may be Reduced at any time though they have not been quarrelled within the Minors Age of twenty five 2ly Because Curators being chosen as a Security to the Levity of Minors they cannot Authorise the Minor to the Curators behove but such Deeds are null So neither could the Pursuers Father Authorize him to be Cautioner for himself The Defender answered First That albeit a Father as lawful Administrator and Tutor to his Children excludes all other Tutors yet he is not Curator after their Pupillarity because they may choose other Curators and that filij familias in the Civil Law could not Contract without their Fathers consent It was a special Statute per Senatus consultum Macedonianum and not as Curator 2ly The Father cannot be lyable for his Omissions by his unprofitable Authorizing his Children for such Actions would be contra pietatem obsequium 3ly There is nothing more frequent in Scotland then Sons to have a distinct Estate while in their Fathers Families given by the Father or otherwise whereof they have the full Administration without Authority 4ly Whatever may be alleadged for Children residing in the Family of their Father yet that cannot be extended to Children Acting by themselves far from their Fathers Family but the Pursuer was so living and Acting at Edinburgh attending the Tolbooth and was majori aeâ—ati proximus being past 20. The Pursuer answered that his Reason stood still Relevant because by the Law of Scotland a Father is lawful Administrator to his Children and is not ordinarly designed lawful Tutor but lawful Administrator which does not only endure during their Pupillarity but during their Minority but at least till they be Married or Forisfamiliat or till they have a distinct Subsistence or Calling And albeit the Children be not Residing in the Family yet they are in familia so long as they are there and not separat from the same as the Pursuer was and albeit the Son may choose other Curators if the Father permit or the Judge think
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
same Ground the rest of the Witnesses proved that the Pursuers were in possession at or about the time Lybelled and that they went to Edinburgh and Locked their Doors and took away the Keys and some of them Deponed that the night before the Defenders Entry they saw the Doors Locked and that the next day after they saw Hugh Colvil and several others in the House and several Goods that were in the House cast out of the Door and that Hugh continued in Possession and took in the Goods again Which the Lords found sufficient to prove the Ejection and Spuilzie seing the Defender did not instruct that he entered by Authority of Law The Defender alleadged at Advising the Cause that the Pursuer had a Husband who within this Moneth was seen at Air and offered to prove by his Oath that he had Ceded the Possession being Warned and gave Warrand to the Defender to Enter and therefore he being Dominus bonorum his Wife and Bairns had no Interest to pursue and though they had his Oath was sufficient to instruct the Lawfulness of the Defenders Possession and that the Wifes Oath in litem could not be taken to Esteem her Husbands Goods It was answered that it was notourly known that the Husband had been two years out of the Countrey and having gone to Sea was commonly repute dead and therefore the Wife being in Natural Possession might lawfully pursue this Action neither was it relevant that the Husband promised to quite the Possession which being but an obligation could not warrand the Defender brevi manu to cast them out unless he had been present or consented to the Entry or had given a Renunciation of his Possession with a Warrand to Enter brevi manu The Lords in respect both Parties acknowledged that the Husband had been a great while absent found the Action competent to the Wife and found that the Husbands Ceding the Possession as was alleadged was not relevant and ordained the Wifes Oath as to the quantity and value of the Goods Spuilzied to be taken and granted diligence to the Defender to Cite the Husband if they could find him to the same Dyet to give his Oath reserving to the Lords what the Wifes Oath could work as to the estimation of the Goods without the Husbands Oath White-head of Park contra Iohn Stratoun Eodem die WHite-head of Park pursues Iohn Stratoun for restitution of an Horse which he delivered to his servant to be put in the Park of Holy-roadhouse to the Grass and which now cannot be found The Defender alleadged that he was lyable for no Loss or Hazard because at that time and long before there was a placad fixed upon the Port of the Park that he would be answerable for no Hazard or Loss of any Horse put in there by Stealling or otherwise which was commonly known at and long before that time It was answered that this Action being founded upon the common ground of Law nautae caupones stabularij ut quae receperint restituunt the same cannot be taken away but by paction and the putting up of a placad is no wayes sufficient nor was it ever shown to the pursuer The Defender answered that the Pursuer having only delivered his Horse to his Servant to be put in the Park without any express communing or conditions it behoved to be understood on such Terms as was usual with others which were the Terms exprest in the placad Which the Lords found relevant unlesse there had been a special agreement in which case they found the Defender or his Servant should have showen what was in the placad Executors of Isobel Trotter contra Trotter November 20. 1667. GEorge Trotter and Iames Lundy his Cautioner having granted a Bond of 636. pounds to Iohn Trotter and the same being Assigned to Isobel Trotter and Confirmed by her Executors they pursue Lundy who alleadged Absovitor because he offered him to prove that the Bond was granted blank in the Creditors Name to Iames Trotter Father to the said Isobel who filled up the Name of Iohn Trotter his Brother therein and took an Assignation thereto in Favours of Isobel who was then in his Family having no Means of her own and therefore it is in the same case as if it were a Bond of provision granted by the Father to the Daughter or taken in her Name which may alwayes be discharged by the Father or altered by the Father at his pleasure and true it is that the Father Submitted the same and was Decerned to Discharge the same which is equivalent to a Discharge It was replyed albeit Bonds of provision to Children be alterable by their Fathers before any thing follow yet if they be delivered to the Children or which is more if they be Registrate they become the Childrens proper Right and cannot be recalled Ita est this Bond though it had been blank ab origine it was filled up in Iohn Trotters Name and filled up before the Submission yea Isobel was dead and the Sum confirmed in her Testament so that her Father could not Discharge it proprio nomine or as his Administrator It occurred further to the Lords that albeit the Bond was Registrat the Assignation granted to the Daughter was not Registrat so that if that Assignation remained still in the Fathers power the case would be alike as if it were a Bond of provision taken originally in the Daughters Name yet this not being pleaded by the Parties And that the Asignation was Intimat that it was not constant that the Assignation remained in the Fathers hands The Lords repelled the Defense in respect of the reply Colonel Seatoun contra the Laird of Balwhilly November 22. 1667. THe Laird of Balwhilly having seased upon a Ship belonging to the Dutch during the War Colonel Seatoun Governour of the Fort at Brassie sound medled with the Ship and Loadning brevi manu for the use of the Garison Balwhilly pursues a Spuilzie before the Admiral Colonel Seatoun gives in a Bill of Advocation on this Reason that Balwhilly having no Commission albeit he did sease upon the Ship yet it belongs to the King and the Colonel had a Warrand from the Lord Commissioner to Intromet therewith for the Garisons use and therefore in the Cause concerning the King His Majesties Advocat and Officers were not obliged to answer before the Admiral nor could they attend there and therefore the Advocation ought to be past It was answered that the Reason was in causa and not relevant for the Advocat ought to have a Depute before the Admiral which is a Supream Court and Process maritime in the first instance ought not to be Sustained before the Lords and that whatever they pretended in the poynt of right Spoliatus est ante omnia restituendus The Lords having heard the Parties upon the Bill in presentia ordained the same to be past It was then desired that as before the Admiral the Colonel behoved to find caution not only judicio
Teinds were exhausted wherein having failzied and being taxed no other could pay for him neither could the King lose that proportion It was answered that he had no interest to conveen the Ministâ—r having the only Right to his Teinds The Lords Repelled the Reason and adhered to the Stent Roll but prejudice to the Suspender to seek his relief of any Partie he pleaseth as accords Mr. Andrew Brown contra David Henderson and Thomas George Ianuary 18. 1668. MAster Andrew Brown granted a Bond of 700. Merks blank in the Creditors Name to George Short wherein the Name of David Henderson is now filled up Thereon George having Arrested all Sums due to Alexander Short in the hands of Mr. Andrew Brown he raises a double Poynding wherein the Competition arises betwixt the Arrester and the the Person whose Name is filled up in the blank Bond. It was alleadged for the Arrester that he ought to be preferred because he Arrested Shorts Money and at the time of the Arrestment this Bond having been Delivered to Short blank in the Creditors Name Short was Creditor ay and while not only another Name were filled up but also an Instrument of Intimation were taken thereupon for Shorts filling up of the Name of Henderson is no more then an Assignation which requires Intimation and is excluded by an Arrestment before the Intimation albeit after the Assignation It was answered for Henderson that there needed no Intimation to the filling up of a Creditors Name in a blank Bond which was never required by Law nor Custom and his Bond being now in his own Name nothing could prove that it was blank ab initio or that it did belong to Short but Hendersons own Oath in which case it would be sufficient for him to Depone qualificatâ— that the Bond indeed was blank ab initio and delivered by the Debtor to Short and by Short to him and his Name filled up therein before the Arrestment or at least that before the Arrestment he had showen the Bond filled up to the Debtor which is equivalent as if he had given back the first Bond and gotten a new Bond from the Debtor after which no Arrestment upon account of the prior Creditor could be prejudicial to him ita est he hath done more for he hath proven that before the Arrestment the Bond was producedâ— and shown to Birny the Debtor It was answered that in a former case in a Competition of the Creditors of Alexander Vetch the Lords found that the Arrestment laid on before Intimation of the filling up of a blank Bond preferred the Arrester and that otherwise Collusion could not be evited with these blank Bonds to exclude and to save Creditors Arresting The Lords preferred Henderson whose Name was filled up and presented to the Debtor before the Arrestment for in Vetches Case there was nothing to instruct that the Bond was truely filled up and presented to the Debtor before the Arrestment and they found the filling up and presenting thereof sufficiently proven by the Witnesses taken ex officio Pollock contra Pollock and Rutherfoord Eodem die UMquhil Iohn Pollock in the Cannongate having given a Bond to Iames Pollock his Son of 5000. Merks he pursues Robert Pollock the Heir of Line and Pollock Heir of the second Marriage for payment The Heir of Line Compearing Renunced whereupon the Pursuer insisted against the Heir of Provision who alleadged no Process till the Heretage be falling to the Heir of Line were first discust and condescended upon the Heirship Moveable The Pursuer answered there could be no Heirship in this Case because the Heir of Line had Renunced all he might Succeed to by his Father Heretable or Moveable in Favours of his Father his Heirs and Executors bearing expresly that his Wife and his Bairns of the second Marriage should have the whole Right Ita est Rutherfoord the Wife had Confirmed the whole Moveables promisâ—ue without exception of Heirship and therefore the Heir of Line himself if he were Entered could claim none It was answered that the Renunciation of the Heir apparent of Line being in Favours of his Father after his Fathers death it returned back to him from his Father as Heir of Line again and could go to no other Person neither thereby could the Heretable Moveables belong to the Executor The Lords found the Renunciation sufficient to exclude the Heir of Line from the Heirship Moveable and that they did thereby belong to the Fathers Exeâ—utor therefore found no further necessity to discusse the Heir of Line and Decerned against the Heir of Provision Grissel Stuart contra the Laird of Rosyth her Brother Ianuary 21. 1668. UMquhil Rosyth gave a Bond of Provision to his Daughter Grissel Stuart of 10000. pounds payable at her age of 17. years with an Obligement to Entertain her in the mean time but no Obligement of Annualrent she pursues her Brother as representing her Father for Implement and having Lived with her Uncle a part of her Fathers time and alleadging that she was hardly used by her Step-mother she craves Aliment for that time of her Fathers Lifetime and for six or seven years since his Death or craved Annualrent for her Sum. The Defender alleadged Absolvitor as to the Annualrent before her Fathers Death because she ought to have continued in her Fathers Family and there neither is nor can be alleadged any just Cause wherefore she should have deserted the same 2dly Absolvitor from Annualrent or Entertainment since her age of 17. years because the Bond bears Entertainment till that age and no Entertainment or Annualrent thereafter 3dly She does not nor cannot alleadge that she payed out any thing for Entertainment but was Entertained gratis by her Uncle The Lords found this no ground to exclude her from Aliment and found Aliment due after the Term of her Bond as well as before but not Annualrent and modified six hundreth Merkes per annum without allowing any thing for the year her Father Lived but modified the more largely it being unfit to Dispute the necessities of her Removal Ianet Schaw contra Margaret Calderwood Eodem die JAnet Schaw pursues a Reduction of a Liferent Infeftment granted to Margaret Calderwood by the Pursuers Father as being in lecto The Defender alleadged no Processe because the Pursuer was not Heir the time of the Disposition but another Heir appearand who never Entered The Lords Repelled the Defence The Defender alleadged that this being an Liferent Infeftment to her by her Husband and but of a small value it was valide and the Husband might Discharge that natural Debt of providing his Wife on Death-bed she having no Contract of provision before The Pursuer answered that the Defender might take the benefit of her Terce which is her legal Provision beyond which a Deed on Death-bed in prejudice of the Heir is null and this Liferent is of the Husbands whole Estate and yet the Pursuer is willing it should stand it being restricted to a
the Subvassal can hinder the Superior to declare the Recognition of his immediat Vassal The Lords Repelled the Defence and Sustained Processe Captain Mastertoun contro the strangers of Ostend February 24. 1668. CAptain Mastertoun having taken a Ship of Ostend Pryze obtained her Adjudged before Ludquharn Admiral Deput of Peterhead The Strangers pursued Reduction before the High Admiral at Leith and obtained Sentence because the Decreet at Peterhead and Warrands thereof were not produced by which Sentence there was Decerned 16000. Dollars for the Ship and Loadning which was Fish taken in Island Mastertoun raises Reduction of the High Admirals Decreet on this ground that it was meerly in absence and proceeded without valuing the Ship or Goods and offered to restore the Ship or value and what he got for the Fish which was but a Dollar the Barrel in regard they spoilled the time of the dependence of the Plea and craved allowance of what he payed to the King being the fifteenth part and the tenth part to the Admiral and alleadged he could be lyable for no more nor quantum lucratus est seing he did bona fide bring up this Ship finding Aboard a Pass from the Magistrats of Ostend which was defective not conform to the Articles of Treaty with the King of Spain in so far as it bore no mention of the Sailers that they were the King of Spains Subjects and the Sailers did Depone that they did belong to Zurickzea under the States of Holland and albeit now ex post facto he is informed that they did reside sometime in Ostend yet he being in bona fide can be lyable in no more nor what he got It was answered for the Strangers that it being acknowledged that the Goods or Persons were free it cannot be denyed in Justice to restore them to their Ship and true value of their Goods that they might have made thereof in Ostend and not the price thereof that the Captain made for seing he acknowledges that they were corrupted for want of Salt it was his own Fault for he should have caused raise the Fish in the Barrels and Salted them again and as for the King and Admirals part there is no reason to allow the samine and put the Strangers to a Processe against the King and Admiral but if it be just he have restitution of his Goods he must have it of his whole Goods at the same availls as he could have sold them with his Damnage and Interest and any pretence of bona fide's can operat no more but to free him from a spuilzy and the Pursuers Oath in litem for the value and profits and to restrict the Process to wrongous Intromission to the true prices and true Damnages It was answered for the Captain that seing he was in bona fide to seize upon the Ship and seing he did obtain Decreet from the Judge Ordinar he was also in bona fide to sell and roup the Goods as they gave at Peterhead and it does not appear that there was Salt there for Salting them again nor Men that had skill nor could they medle with them till Decreet was pronunced which was a long time they were also in bona fide to pay the King and Admiral neither are the Kings Officer nor Admiral Cited but only the Admiral Deput The Lords found that seing the Pass did not bear the Sailers to be the King of Spains Subjects conform to the Articles that the Captain was in bona fide to bring her up and found him free of any Damnages and found him lyable for the price of the Ship and Fish as they might have been sold at Peterhead by rouping as use is if they had been preserved and found him obliged to have preserved them and repelled the alleadgeance as to the tenth and fifteenth but prejudice to the Captain and Owners to seek repetition thereof and found no necessity to Cite the Admiral his Deput being Cited Merchants of Hamburgh contra Captain Dishingtoun February 25. 1668. CAptain Dishingtoun having taken a Merchant Ship of Hamburgh and obtained her to be declared Pryze the Hamburgers raises Reduction on this Reason that the only ground of declaring her Pryze was because she carried Counterband Goods towards the King of Denmarks Domissions being then in Enmity with the King which was no relevant ground because it is evident the Ship was seized a Moneth before the proclamation of War against the Danes It was answered for the Captain that it is not the proclamation of War that makes the War for the Kings Declaration is only to give an account to the World upon what account the King had made War with the Danes and it is notour that there were frequent Acts of Hostility both by the Danes and against the Danes before this Capture It was answered for the Strangers that publick denunciation makes only a publick and lawful War but whatever might have been done against the Danes the Hamburgers being the Kings Allies and Friends were not obliged to know the same until such time that the proclamation of War might come to their Ears so that they have done no Fault being in bona fide to continue their Trade until the War was made publick to the World It was answered for the Captain that he was in optima fide to execute the Kings Commission bearing expresly to make Pryze of all carrying Counterband Goods to the Danes and therefore he could not be Decerned as praedo but the most can be Decerned against him though the Pursuer should be found to have been in bona fide to Trade with the Danes is to restore in quantum lucratus est but so it is that he made no profit for after the Capture he being pursued at Sea by the Enemy was forced to leave the Ship in question being Loadned by him whereby she was driven a shore and suffered Ship-wrack The Lords found that the Hamburgers were in bona fide to continue their Trade with Denmark and to carry to them Counterband Goods at the time of the seisure and therefore Reduced the Admirals Decreet as to the Restitution of the Ship and Goods or what profit the Defender made of them but for no higher value nor damnages in respect the Captain was in bona fide to execute the Kings Commission unlesse it were alleadged the Captain was in culpa in the losse of the Ship or misprising the Goods Lord Almond contra Thomas Dalmahoy Eodem die THe Lord Almond pursues a Declarator of the Escsheet of Thomas Dalmahoy who alleadged Absolvitor because he was Denunced upon a Bond granted by the Dutchess of Hamiltoun wherein he being only Charged as Husband for his interest and Denunced at the Mercat Crosse of Edinburgh and Peir and Shoare of Lieth being then Residenter in England and now the Marriage being dissolved by the Dutchess Death his Interest â—eâ—seth as to all effects and so as to this Horning 2dly The Denunciation being upon a Bond due to the Dutchess own
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot
or out of any other the Canons Portions of this Kirk George Shein contra Iames Christie Eodem die G Christison of Bassallie gave an Infeftment to his eldest Son of the Lands of Bassallie and to his second Son of an Annualrent of 86. merks forth thereof both of one date and both reserving the Fathers Liferent Iames Christie hath Right by Appryzing led against the eldest Son in his Fathers life to the Lands George Shein hath Right by Adjudication against the second Son to the Annualrent and pursues a poinding of the Ground It was alleadged for Iames Christie that Sheins Authors Right was base never cled with Possession and so null whereas his Right was publick by an Appryzing and had attained to Possession It was answered that the Fathers Liferent being reserved the Fathers Possession was both the Sons Possession and did validat both their Rights It was answered that a Disposition by a Father to his own Children reserving his own Liferent though Infeftment follow is alwayes accounted simulat and never accounted cled with Possession by the Fathers Possession as hath been frequently decided It was answeredâ— that albeit in Competition betwixt base Infeâ—tments granted to Children and Infeftments granted to Strangers upon onerous Causes the Childrens Infeftment though prior and though reserving the Fathers Liferent uses to be preferred yet here that holds not for both Infeftments are granted to Children both of one date and neither of them to Strangers or upon onerous Causes and therefore the Reservation here is without suspition of Simulation and the Fathers Possession must both validat the second Sons Annualrentâ— and the eldest Sons property Which the Lords found Relevant and that the Fathers Possession by this Reservation did sufficiently validat both the Sons Infeftments and that the Possession of one after his Death or of any succeeding in his Right did not exclude the other or his singular Successor Mr. Robert Burnet contra Swane Eodem die MR. Robert Burnet Tutor of Lâ—yes pursues for Mails and Duties of a Tenement in Aberdene It was alleadged for Swane the Defender Absolvitor because he stands Infeft in the Lands and by vertue of his Infeftment in Possession and albeit the Pursuers Infeftment be prior it is null neither being Registrat in the Register of Seasins nor in the Town Clerks Books of Aberdene according to the custom of all Burghs but hath been latent many years and no vestige of it in the Town Books so that the Defender was in bona fide to Contract with the common Authour and Apprize thereafter It was answered that the Act of Parliament excepted Seasins within Burgh and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal or Record Which the Lords found Relevant and sustained the Seasine Colquhoun and Mcquair contra Stuart of Barscub Iuly 1. 1668. THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair to be holden of himself in the Contract of Alienation there is a special Clause that because the Lands are holden Ward of the Duke of Lenox therefore Barscub is obliged to relieve these Feues of any Ward that shall fall in time coming Thereafter Barscub Dispones the Superiority of these Lands and by the Death of his singular Successor his Heir falls in Ward whereupon Sentence was obtained against the Feuars for the Ward Duties and the avail of the Marriage and they now pursue relief against Barscubs Heir upon the Clause of Warrandice above-written The Defender alleadged that the Libel was no ways Relevant to infer warrandice against him upon the said Clause because the meaning thereof can only be that he as Superiour and so long as he remained Superiour shall relieve the Feuars which ceases he being now Denuded of the Superiority otherwise it behoved to have imported that he should never sell the Superiority without the Vassals consent which no Law doth require or if the Lands had been Appryzed from him he could not be lyable for the Ward of the Appryzers Heir which is cleared by the ordinary Custom there being nothing more frequent in Charters than Clauses of absolute warrandice and yet none was ever overtaken thereby after they ceased to be Superiours The Pursuer answered that his Libel was most Relevant because this being an Obligement conceived in their favours by Barscub not qualified as Superiour no Deed of Barscubs without their consent can take it from them unless Barscub when he sold the Superiority had taken the new Superiour obliged to receive the Vassals with the same warrandice but now the new Superiour not being obliged by this personal Clause Barscub the old Superiour must remain obliged especially in a Clause of this nature which is express for all Wards to come The Lords Repelled the Defense and Sustained the Libel and found the Superiour albeit Denuded lyable for Warrandice Thomas Rue-contra Andrew Houstoun Iuly 3. 1668. ANdrew Houstoun and Adam Mushet being Tacksmen of the Excize did Imploy Thomas Rue to be their Collector and gave him a Sallary of 30. pound Sterling for a year thereafter he pursued Andrew Houstoun upon his promise to give him the like Sallary for the next year and in absence obtained him to be holden as confest and Decerned Which being Suspended he obtained Protestation and therefore raised Caption and apprehended Andrew Houstoun at Wigtoun who gave him a Bond of 500. Merks and got a Discharge and being Charged upon the Bond of 500. Merks he Suspends on these Reasons that Thomas Rue had granted a general Discharge to Adam Mushâ—t who was his Conjunct and coâ—reus deâ—endi afâ—er the alleadged Service which Discharged Mushâ—t and consequently Houstoun his Partner 2dly The Decreet was for Sallary and it was offered to be proven that Rue for his Malversation was by warrand from Ceneral Monk excluded from Collection that year and by the Discharge of the Decreet and this Bond both of the same Date and VVitnesses it did appear that this Bond was granted for the Decreet and if the Decreet were Reduced by the Reduction thereof depending the Bond would fall in consequence as granted for the same Cause The Charger answered that he was now not obliged to Dispute in relation to the Decreet First Because the Suspender had Homologat the same by taking a Discharge thereof and giving a Bond therefore 2dly There was not only a Homologation but a Transaction upon a Reference made by the Parties to â—aldone conform to his Attestation produced so that that Transaction cannot be recalled upon any pretence but is the most firm and Obligatory Contract of any The Suspender answered that his payment making and taking Discharge was no Approbation nor Homologation but that he might reduce the Decreet and repeat if he had payed or been poynded and so may retain especially seing it was done metu Carceâ—is he being taken with Caption and as to the Transaction he denies the same neither can it be instructed by Baldones Attestation but by the
spoke expresly of commodaâ—um estimatum to Transfer the peril on the borrower and there is no Law adduced to restrict it not to take place in that which is estimat only in the case of Deterioration ubi lex non distinguit nec nos and as to the meaning of the Clause in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse So this Bond being the Defenders words blame himself if he made not that clear The Defender answered that albeit that be one Rule of Interpretation yet there are others stronger making for him viz. In dubiis respondendum pro reo in dubiis pars mitior aequior sequenda Now it cannot be thought that Parties would have been so unreasonable as to have demanded Restitution if the Kingdom were lost and the Cannon taken after all Diligence done to keep them but this is the most special Rule In dubiis respondendum secundum naturam actus ant contractus The Lords found that by the Nature and Tenor of this Contract the Defenders were not lyable for this Accident that happened and that they were not in mora nor culpa but had done all Diligence and therefore found the Cannon lost to the Pursuer and Lender and Suspended the Letters simpliciter Thereafter upon pronuncing of the Interlocutor The Pursuer offered to prove by the Writter and Witnesses insert in the Bond that it was expresly Treated and Agreed and that the meaning of the Clause was that the Defender should be lyable to all hazard and desired the Witnesses at least to be Examined ex officio The Defender alleadged that the Pursuer having gotten a Term already to Examine Witnesses ex officio and the Parties being Examined he could not now demand a new Term neither could a clear Clause in a Bond be altered by Witnesses The Pursuer answered that the Clause was at best but dubious and so the meaning was not to prove against the Writ but to clear the same which is ordinar The Lords would not give any further Term for leading Witnesses but found that alleadgance only probable by the Oath of the Party Patrick Andrew contra Robert Carse November 25. 1668. PAtrick Andrew having sold twelve piece of Wine to Margaret Henderson who keeped a Tavern after she was Proclaimed to be Married to Robert Carse Flesher a part of which Wines was vented before the Marriage and a part thereof vented after the Marriage but the Marriage Dissolving within three or four Moneths by the Wifes Death the most part of the Wine remained unsold at her Death the Merchand pursued the Wife for the Price and the Husband for his Interest some dayes before she dyed after her Death her Husband vented no more of the Wine but caused the Magistrates Inventar the same and delivered the Keys to them Patrick Andrew who sold the Wine doth now pursue Robert Carse the Husband for the price of the Wines who alleadged Absolvitor because there was no ground in Law to make him lyable for his umquhil Wife her Contract and Obligement ex Empâ—o he being only lyable jure mariti which being Dissolved by her Death he is free for he is neither Heir nor Executor to her The Pursuer answered that the Husband having allowed the VVife to continue the Venting of the VVine she was thereby preposita negoliis mariti and thereby her medling must be the Husbands medling who must be lyable for the whole price especially seing he never made offer of the remaining VVine to the Pursuer though he knew his Interest and had pursued him for the price so that the VVines having perished it must be attribute to his fault and the Merchant who knew not the condition thereof cannot lose the same 2dly The Pursuer offered to prove that the Defender put in his own Nephew to be Taverner after he Married the VVoman 3dly The ground in Law that the Pursuer insists on against the Husband is in quantum lucratus est by his Intromission with the VVine and price thereof and any thing that has been lost through his fault is alike as he had been Profiter in the whole The Defender answered that he declyned not to be lyable in so far as he was Profited viz. for the price of the VVine Vented during the Marriage which he was content to refer to the Pursuers Probation how much was Vented then but he could not be lyable for what was Vented before the Marriage though after the Proclamation much less for what remained unsold after the VVifes Death neither was he in any fault by not offering the VVine to the Pursuer nor might he lawfully do the same because the Marriage Dissolving within year and day the propertie of the whole VVines returned to the VVifes Executors and nearest of Kin and the Husband had no interest therein as he would have had if the Marriage had continued year and day neither had the Merchant any right to the Wines the property whereof was in the Wife and her Executors but had only a personal Obligation for the price and therefore he could not deliver the Wine nor medle therewith without vitious Intromission so that he did the most exact Diligence by Inventaring and Delivering the Keys to the Magistrates so that there being ten piece of Wine then in the Celler the Defender could only be lyable for so much of two Piece as the Pursuer should prove sold during the Marriage The Pursuer answered that the Defender having once intrometted and medled with this parcel of Wine he is in so far lucratus and he can no more sever some Punsheons unspent from the rest nor one part of a Punsheon Vented from the remainder so that he can offer nothing back of the parcel re non intâ—gra nor can he alleadge that the whole ten Piece was of the Pursuers Wine because the Pursuer offered to prove that this Deceast Wife bought other Wine from other persons at that time and it were against Law and Reason to put the Merchand who is a stranger to prove what was Vented during the Marriage and how much of the Pursuers Wine remained after the Marriage for that was the Defenders part to enquire and not the Pursuers part who is a stranger The Lords found the Defender not lyable for that part of the Wine Vented before the Marriage nor yet for what remained unspent after the Wifes death seing he Inventared and abstained but they found the Husband obliged to prove both wat was spent before the Marriage and what of this Wine remained after the Marriage If the Pursuer proved there was other Wines in the Celler and so found the Defender lyable foâ— the whole except in so far as he proved was sold before the Marriage and remained after the Wifes Death The Daughters of Mr. James Mortoun Supplicant November 26. 1668. THe Daughters and Heirs of Mr. Iames Mortoun gave in a Supplication to the Lords making mention that the
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and extended
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants who
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
of the Shire but at the Mercat Cross of the Regality in the English time when Regalities were supprest 2dly That the Appryzing was led at Glasgow and neither within the Shire of Air where the Lands ly nor by Dispensation at Edinburgh And albeit the Letters bear a Dispensation to Appryzâ— at Glasgow and that the Denunciation was made accordingly for the Parties to appear at Glasgow yet there was neither Law nor Custom for such a Dispensation and Parties are not obliged to attend but at the head Burgh of the Shire or in communia patria at Edinburgh 3dly The Pursuer has also an Appryzing though posterior yet preferable because solemn and orderly according to the Custom then being It was answered that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities which were then supprest where they were used at the head Burgh of the Shire according to the Custom then and so validats such Appryzings yet this Defender having according to the standing Law of the Land Denunced at the head Burgh of the Regality the contrair unwarrantable Custom cannot annul his Appryzing proceeding according to Law And as to the Dispensation at Glasgow which was nearer the Lands then Edinburgh whatsoever might have been said to the inconveniency of granting such a Dispensation yet being granted it is valide and was then frequent to grant such Dispensations The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time at the head Burgh of the Shire upon Denunciation that it was more solemn and preferable as to the manner of Denunciation than that which was upon Denunciation at the head Burgh of the Regality at that time But the Lords did not determine whether such an Appryzing would have been valide if there had not been a more formall one Nor whether the Dispensation being granted at Glasgow was valide Margaret Scrimzeor contra Alexander Wedderburn of Kingennie Iuly 19. 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie and two others to be Tutors to his Daughter She now pursues a Tutor Accompt wherein this Question arose and was reported to the Lords by the Auditors viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished and became Insolvent and craved to be liberate thereof on that Ground in his Discharge It was alleadged for the Pupil that the Tutor must be lyable from the time that he knew that he was Nominat Tutor for albeit he might have abstained absolutely yet once accepting the Tutory by Nomination of a Testament wherein a Legacy was left to himself he must compt as if he had accepted it at the first for which there was adduced many Citations of Law It was answered for the Tutor that in the Roman Law Tutors were obliged to accept so soon as they knew their Nomination unless they could free themselves by the excuses allowed in that Law But with us it is absolutely free to accept or refuse without any excuse and it is only the acceptance that obliges and so can have no effect ad preterita as to that which perished before acceptance especially in this case the Defender being but one of three Tutors Nominate he ought to have had a time to endeavour with the rest to accept and his lying out was in such a time in which Judicatures did cease by War and Troubles the English after the Battel of Dumbar in September 1650. being possest of Edinburgh and the publick Records there was no Session keeped till the year 1652 or 1653. The Lords found the Tutor was not lyable for any thing that perished before his acceptance The Executors of Walter Hamiltoun contra The Executors of Andrew Reid Iuly 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid for payment of a Bond of 122. pounds Sterling and of a Bond of eighteen pounds Sterling due by the said umquhil Andrew Reid to the said umquhil Walter Hamiltoun The Defenders alleadged that they ought to have allowance of fifty pounds Sterling payed to Walter by Iohn Fleeming by Andrew Reids Order and of Sterling payed to Mckneich upon a Bill drawn by Walter Hamiltoun upon Andrew Reid to be payed to Mckneich and for proving thereof produced missive Letters Written by Walter Hamiltoun to Andrew Reid the one bearing that Fleeming had payed a part of the 50. pound and he doubted not but that he would pay the rest And the other bearing that Mckneich had got payment It was answered for the Pursuers that the Missive Letters could not instruct a Discharge or abate those clear Bonds because they did relate to Bills and Orders upon which payment was made and except those Bills and Orders can be produced the Letters relating thereto can have no effect for it must be presumed that the Bills and Orders have been retired by Walter Hamiltoun as having been allowed in other Bonds which then have been delivered by VValter to Andrew Reid it being the ordinar course amongst Merchants to interchange Bills and Bonds without any other Discharge neither do they take notice of their Missives relating to such Bills or Orders nor can it be supposed they can remember the same The Auditors in this Accompt having taken the opinion of several knowing Merchan's anent their Customs in this point they did all report in Writ and did all agree in this that missive Letters relating to Bills Orders or Discharges had no effect unless the Bills Orders or Discharges were produced and that Merchants neither did nor could have notice of such Missives to retire or interchange the same they did also visit Walter Hamiltouns Compt Book by which there appeared several other Bonds and Accompts betwixt the Parties beside these And in which also the sums contained in these Letters were set down as payment in part of the other Bonds and Compts whereby it appeared that the Bill and Order mentioned in the Letter were interchanged with the former Bonds The Lords found that the missive Letters relating to the Bill and Order had no Effect unless the Bill and Order were produced Hugh Moncrief of Tippermalloch contra Magistrates of Pearth Iuly 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth from whence he having escaped he pursues the Magistrates of Pearth for payment of the Debt who alleadged absolvitor First Because their Tolbooth was sufficient and the Rebel had escaped vi majori having broken the Stone in which the Bolt of the Tolbooth Door entered and forced the Lock in the time of Sermon and that immediately after the Rebel escaped out of the Town and was met with Friends that were trysted there at the time of his escape 2dly They had laid out all wayes thereafter to search for
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâ—st 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ— without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pâ—rocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
of a thousand merks whereanent it being Debated anent the manner of Probation and Witnesses ex officio being craved for clearing the Trust by the Writer Witnesses and Communers The Lords refused to Sustain the same till first they considered the other Reason of Circumvention which was Libelled thus That the Disponer was a lavish weak person that the Disposition was elicite by his own Good-brother for a thousand merks only and that he keeped him privatly from the access of all other Friends and drank him drunk in which condition he was when the Disposition was Subscribed and that it was not Read unto him and it being excepted upon a Ratification some Weeks after at another place and the Reason of Circumvention repeated on the same Terms against that Ratification The Lords ordained Witnesses to be Examined ex officio upon the Reason of Circumvention as to both and specially whether these Writs were Read at the Subscribing and whether the Subscriber was Drunk and whether he was thereby insensible or disordered in his Reason or what were the Motives induced him to Subscribe Sir George Maxwel contra Maxwel of Kirkonnel Eodem die SIr George Maxwel of Nether Pollock pursues Maxwel of Kirkonnel for payment of a Debt of his Fathers as behaving himself as Heir by intromission with the Mails and Duties of his Fathers Lands of Kirkonnel The Defender alleadged Absolvitor because his Father was Denuded and an Appryzer Infeft and so could have no Heir in these Lands It was Replyed that notwithstanding of the Appryzing the same remained Redeemable and the Defunct remained in Possession and the Defender his appearand heir did continue his Possession and so has behaved as Heir and though he had had a Right or Warrand from the Appryzer yet during the Legal it is immistio having no other Cause nor Title It must be presumed to be granted to him as appearand Heir much more where he hath no Warrand from the Appryzers 2dly It is offered to be proven the Appryzers were satisfied by intromission and what is wanting the Pursuer offers to satisfie the same at the Bar for by the Act of Parliament 1661. betwixt Debitor and Creditor Appryzings acquired by appearand Heirs may be satisfied by the Defuncts Creditors for the sums they truly payed out by the space of ten years So that the Defender ought to condescend and Depone what he gave out and to count for his Intromission and what is wanting the Pursuer will pay The Defender answered that behaving as Heir being an odious universal passive Title any colourable Ground is sufficient to restrict it to the value intrometted with And as to the offer to satisfie the Defender of the Appryzing to which he has Right It is not competent hoc ordine for by the Act it is only introduced in favours of other Appryzers and the Pursuer is a meer personal Creditor without any Appryzing It was answered that the Narrative of that part of the Act bears it expresly to be in favours of Creditors and though the subsumption is only applyed to Appryzers yet it is not exclusive and by the common Custom satisfaction of Appryzings by intromission or present payment is ever received by Exception or Reply The Lords found that behaving as Heir is sufficiently elided by any Right or Warrand from the Appryzers as to intromission thereafter or that if the Defunct died not in Possession But that the Appryzers had then or thereafter attained Possession before the intromission But found that the appearand Heirs continuing in the Defuncts Possession without a Warrand did infer behaviour and that the offer to purge the Appryzing at the Bar was competent hoc ordine without burdening the Creditors with the Expenses of Appryzing to make the appearand Heir lyable for what he intrometted with and that the appearand Heir should assign the Appryzing whereupon the Creditor might continue Possession till he were satisfied of the sums now payed out Robert Lermont contra The Earl of Lauderdail Iuly 12. 1671. SIr Alexander Swintoun having Disponed his Estate of Swintoun to Iohn Swintoun his Son in his Contract of Marriage there is a Clause therein on thir Terms that it shall be leisom to the said Sir Alexander to affect and burden the Estate with Infeftments of Wodset or Annualrent for the sum of fifty four thousand merks for his Creditors and Bairns thereafter Sir Alexander grants a Bond of 1400. merks to the Laird of Smeatoun and declares it to be a part of the fifty four thousand merks whereof 2000. merks being now in the Person of Robert Lermont He pursues the Earl of Lauderdail as now come in the place of Iohn Swintoun by his Foresaulture to pay the sums or at least that the Lands is or may be burdened therewith because the Forefault Persons Infeftment being qualified with the said Reservation it is a real Burden affecting the Estate and Swintouns Infeftment being publick and thus qualified and burdened was as to this point the Creditors Infeftment and his being Forefault could not prejudge the Creditors as to this real Burden in a publick Infeftment granted by the King The Defender alleadged that the Libel was not Relevant for the Reservation being a meer Power of Burdening by Infeftment it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore But seing Swintoun made no use of that power albeit it might have been sufficient against Swintoun the Contracter or his Heirs It cannot militate against the King or his Donator to whom the Fee returns by Forefaulture without any Burden but what the King has consented to by publick Infeftments or Confirmations And though old Swintoun had given the Pursuer a base Infeftment it would have fallen by the Forefaulture not having been Confirmed much more when there is no Infeftment The Lords found the Libel not Relevant and Assoilzied The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others Eodem die THe Estate of Sir Iames Keith of Powburn being Appryzed by several of his Creditors they now compet for preference Mr. Thomas Lundie who led the first Appryzing was more then year and day before the rest and thereupon his Heir craved preference It was alleaged the Apprizing was null First Because it proceeded upon a Bond carrying a Clause of Requisition and the Claim of the Appryzing did not Libel thereupon so that albeit it be now produced and done debito tempore Yet the Claim was not sufficiently instructed without it 2dly The Messenger did unwarrantably continue the Court of Appryzing till another Dyet without any necessar Cause which was never accustomed before and is of very evil consequence for thereby Messengers at their pleasure may continue and weary out the Persons concerned who might propone Defenses or produce Suspensions and are not obliged to attend the pleasure of the Messenger 3dly The Appryzing was at the Beitch-hill of Cowper which is not within the Shire where the Lands ly And albeit there be a Dispensation in
Pursuite Marjory Murray contra Isobel Murray Eodem die UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements did thereafter by his Testament leave a Legacy of a thousand pounds to their Daughter Marjory Murray and gave other Provisions to the said Isobel his Wife and provided his Daughter to the two Tenements Which Testament his Wife Subscribes and after his Death Confirms the same but under Protestation that her Confirmation should not prejudge her own Right The Daughter pursues for the Legacy of 1000. pounds and for the Rents of the Tenements and alleadges that the 1000. pounds must be free to her without being abated by Implement of the Mothers Contract And likewise the two Tenements by her Mothers consent and subscription It was answered that the Mothers subscription was a Donation betwixt Man and Wife for being to the Mans Daughter whom by the Law of Nature he is obliged to provide it was all one as if it had been to himself 2dly her Subscription was obtained in luctu her Husband being near his Death and at his desire ex revèrentia maritali and the Confirmation can be no Homologation because of the Protestation foresaid It was answered that it was protestatio contraria facto and the Wife had no necessity to do it for she might have Confirmed her self Executrix Creditrix The Lords found that there was here no Donation between Man and Wife but in respect the Parties had not Debated the effect of reverentia maritalis ordained them to be heard thereupon and found the Protestation sufficient to take off the Ratification or Homologation by the Confirmation and found the Legacy of 1000. pounds to be left only according to the nature of a Legacy out of the Defuncts free Goods and would not exclude the Relict or any Creditor Sir David Dumbar of Baldune contra Sir Robert Maxwel Iuly 14. 1671. SIr David Dumbar of Baldune being Infeft upon several Appryzings in the Estate of Kirkcudbright pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun of all Rights of the said Estate granted by Baldune himself or by umquhil Iohn Lord Kirkcudbright or Thomas Lord Kirkcudbright or any of their Predecessours to whom they may Succeed jure sanguinâ—s to the Defender It was alleadged no Certification of any Writs made by the Predecessours of Iohn or Thomas Lords Kirkcudbright to whom they might succeed jure sanguinis because that can be no active Title to the Pursuer for if Iohn Lord Kirkcudbright himself were pursuing a Reduction he would not have a sufficient active Title to Reduce the Writs made by any Person to whom he was appearand Heir unless he had been actually Heir So neither can the Pursuer his Appryzer have further interest then Lord Iohn himself for albeit the Clause is Relevant passive against the Defenders to produce all Writs made to them or to their Predecessours to whom they may succeed jure sanguinis because Reductions and Declarators are Competent against appearand Heirs without any Charge to Enter Heir Yet they are not competent to appearand Heirs till they be actually Entered It was answered that the Pursuer being publickly Infeft has good interest to call for all Writs that may burden the Land to the effect he may improve the same as an impediment hindering his Infeftment But specially an Appryzer who has not his Authors Rights and that this has been always the stile of the general Clause in Improbations The Lords found the Defense Relevant and would grant Certification against no Writs but such as were granted by person whose Infeftments and Retours should be produced before Extract The Defender further alleadged no Certification against any Rights made by Thomas or Iohn Lords Kirkcudbright to the Defender because no person was called to Represent them Whereas it is known that George Lord Iohn's Nevoy is both appearand Heir-male and of Line and that this has been the common Defense always Sustained The Pursuer answered that the only ground of this Defense is when Defenders have Warrandice from their Authors and therefore the Pursuer ought to call their Authors that their Rights inâ—erring Warrandice upon them may not be Reduced they not being heard But here the Defender produces no Right from Lord Iohn or Lord Thomas and so the alleadgeance is not Relevant against the Production but only in case such Rights be produced it will be Relevant when the Pursuer insists to Reduce the Writs produced The Lords Repelled the Defense and reserved the same if any Right should be produced by the Defender bearing Warrandice Laird of Milntoun contra Lady Milntoun Eodem die THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun for annulling a Decreet of Divorce obtained at her instance against Iohn Maxwel her Husband the Relevancy whereof was Discust upon the 31. day of Ianuary 1671. and only the manner of Probation of the Corruption of Witnesses by prompting them how to Depone or by promising or giving them Bribes or any good Deed to Depone more than their ordinar Charges remained undiscust It was alleadged that such Reprobators were only probable by Writ or Oath of the Party adducer of the Witnesses post sententiam latam for Reprobators upon Corruption albeit they might be proven before Sentence by Witnesses above exception as to giving of Bribes which was a palpable Fact yet not then by prompting or promising or any words emitted which are only probable by the Witnesses adduced or by the Oath of the Adducer Neither in that case if the Witnesses adduced be above all exception can Witnesses be adduced against them but only their own Oath or Oath of the Party So that any Party that quarrels VVitnesses by Reprobators ought to do the same after they are adduced and before Sentence but if Sentence be once pronunced and Extracted it is res judicata quaepro veritate habetur And if Reprobators upon corruption be used after the Sentence upon Corruption the same can only be probable by the Oath of the Adducer And neither by the Oath of the VVitnesses adduced who cannot annull their own Testimony post jus quaesitum parti nor by other VVitnesses and if it were otherwise the greatest inconveniencies would follow for then the Sentence and Securities of the people founded thereon might for fourty years space be quarrelled upon pretence of corruption and singular Successors acquiring bona fide might be outed of their Rights As also there shall be no Termination of Process for as the first Sentence may be Canvelled by Reprobators against the Testimonies whereupon it proceeded so may the second be Canvelled in the same manner by a second Reprobator and so without end And seing the Law of this Kingdom hath been so jealous of Probation by Witnesses that it hath not allowed sums above 100. pounds to be proven thereby So Witnesses should not be admitted in Reprobators especially after Sentence It was answered that Reprobators being a necessar remeed against the
and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that this
or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to exclude
Reductions and Declarators against appearand Heirs not requiring a Charge to Enter Heir in respect the appearand Heir must therein except upon the Defuncts Rights and so behave as Heir Iune 27 1667. Dewar contra Paterson Annus deliberandi Excludeth Citations given within that year here the day of compearance was within the year Ibidem ANNVALRENT was not found due for sums of Money without paction albeit the Money was lent with this provision that failing Heirs of the Creditors body who was very old the Debitor should succeed December 11. 1662. Logiâ— contra Logiâ— Annualrent was found due after Horning albeit the Decreet being Susâ—ended a part of it was taken away yet Annual was found due for the rest Ianuary 30. 1663. Rigg of Carberry contra his Creditors Annualrent was allowed without paction for a Portâ—on left by Legacy to the Defuncts natural Daughter the time of payment of which Legacy was her Marriage which being in her power The Lords would give no occasion to hasten the same but allowed Annualrent in the mean time Iune 25. 1664. Inglis contra Inglis Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mothers Father and uplifted by the Father during the time he alimented his Son in his Family December 15. 1668. Windrham contra Eleis Annualrent promised for a time by a Letter was found due in all time thereafter Ianuary 13. 1669. Hume contra Seaton of Menzies Annual of Annual was not found due though expresly obliged to be payed by a Bond beaâ—ing That after each Term the Annualrent if it were not payed should bear Annualrent with the principal which clause was found null and not in the same case with a Bond of Corroboration granted after Annualrents were due accumulating the same Ianuary 26. 1669. Lady Braid contra Eâ—rl of Kingâ—orn APPRYZINGS were found not to be affected by a Bond or a Contract amongst the Appyzers to concur and communicat their Rights as to singular Successors seing the Contracters were then Infeft Iuly 1661. Taâ—lziâ—er contra Maxtoun An Apprizing led before the year 165â— but no Infeftment thereon till after that year was found not to come in pari passu with posterior Apprizings Infeft or Charging after the Charge or Infeftment on the Appryzing before 1652. but it did exclude them wholly December 12. 1666. Sir Henry Hume contra Creditors of Kello An Apprizer was found Comptable â—or his Intromission with such as he Entered in Possession of according to the Rental the Lands gave at his Entry with power to him to give up all defalcations in his Discharge and instruct the same Ianuary 4. 1662. Seaton contra Rosewall An Apprizer was excluded by a prior Infeftment though granted to the Creditors appearand Heir whereby he became Lucrative Successor after this Debt contracted but prejudice to purâ—ue him personally or to Reduce on that Title Ianuary 6. 1662. Mansoun contra Bannerman of Elsick An Apprizer pursuing for Removing and Mails and Duties his pursuit was Sustained only as â—o so much of the Apprized Lands as he should choose worth 8. per cent and to compt for the superplus more than his Annualrent and publict burdens excepting the Defenders House and Mains by the late Act of Parliament betwixt Debitor and Creditor Iune 27. 1662. Wilson contra Murray Apprizers Competing upon the late Act of Parliament bringing in Apprizings since 1652. pari passu was found not to exclude Apprizings before having obtained Infeftment since but that none could come in with him who was first Infeft and payed the Composition till they refounded their shares thereof Ianuary 24. 1663. Graham contra Ross. But also by the Tenor of the late Act the first Apprizers being Infeft in an Annualrent were found to have access to his Annualrent thogh there was no poinding of the ground February 5. 1663. Inter â—osdem An Apprizer was found comptable for the Rents of the apprized Lands during the Debiâ—ors Minority contrary the Act of Parliament 1621. Which was â—mended in the late Act 1641. But in the late Act Rescâ—ssory that was not Revived seing all private Rights by these Rescinded Acts. mâ—dio tempore were Reserved and this had been the Custom for twenty years February 18. 1663. Rosse contra Mckenzie Apprizers Competing the first Apprizer having given the first Charge on the Letters of â—our Forms and before the dayes thereof were expired the Superiour Infefting a second Apprizer the Infeftment was found Collusive and the first Apprizer giving the â—irst Charge and Infeft within a litle time after the second was preferred and the first Infeftment Reduced was still in Possession till now that the Legal was expired not only the bygone Fruits were his own but that he might Redeem within a year after this Sentence seing by the Taciâ—urnity of the Pursuer he was in bona fide to continue his Possession and not to doubt his own Right or Redeem a second Apprizer December 3. 1664. Laird of Clâ—rkingtoun contra Laird of Corsbie An Apprizing within a year was excluded from coming in pari passu with a prior Apprizing in respect the prior Apprizer had before the Act betwixt Debitor and Creditor taken Right to a prior Apprizing without necessity to alleadge that he took the Right to shun the expiring of the Legal of that prior Apprizing or any other necessary Causâ— December 9. 1664. Iohn Veatch younger of Dawick contra Alexander Williamson Apprizers Competing where the first Apprizer being Infeft would possess but a part the Debate being as to the rest betwixt the second Apprizer not Infeâ—t and the third Infeft the Lords preferred the second as needing no Infeftment December 22. 1664. Doctor Ramsay and Hay contra Seatoun Apprizers come in pari passu not before the date of the late Act but from that time both Parties Sums should be accumulate and the Mails liâ—ted proportâ—onally but prâ—ceeding Mails should be imputed in payment of the Expence of the Apprizing Composition to the Superiour and then in payment of the principal Sums Ianuary 7. 1665. Grahame of Blackwood contra Browâ—s An Appriâ—ing being to be led the present Hâ—ritor and Possessors obtained assessors to be joyned to the Messenger that he might stop the Apprizing by production of his Inâ—eâ—tment â—ebruary 3. 1665. Sir Iohn Fletcher Supplicant An Apprizing ordained to be allowed and Registrat after the Debitors death and long after the sixty dayes were past from the Date of the Apprizing and that upon Supplication without Citation in respect it was found that the Apprizing Registrate Quandocuâ—que would be preferred to others not sooner or more orderly Registrate Iune â— 1665. An Apprizer pursuing for Mails and Duties was excluded till he â—atisfied the Superiour for a years Rent he being now ready to Recâ—ive him albeit he â—as Charged before and did not obey Iuly 22. 1665. Iohnstoun contra Tennents of Auchincorse An Apprizing being lost and a new Extract thereof being Subâ—cribed by the Clerk of the
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make