Selected quad for the lemma: lord_n
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A50746
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Pleadings in some remarkable cases before the Supreme Courts of Scotland since the year 1661 to which the decisions are subjoyn'd.
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Mackenzie, George, Sir, 1636-1691.
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1673
(1673)
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Wing M192; ESTC R27547
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158,540
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250
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frugal because they hope their Estate may remain with their Posterity encourage not such as resolve to shake loose by their Prodigality what was establish'd by their wise Predecessours By favouring the Creditors Defences you will but gratifie the prodigality of Heirs or the laziness of Creditors whereas by sustaining my Clients pursute you will secure us as to our own pactions and as to your decisions you will perpetuat Noble Families and bound the Luxury of such as are to succeed The Lords sustain'd the Pursute and repell'd the Defences propon'd for the Oreditors For the Lady Carnagie and her Lord against the Lord Cranburn THIRD PLEADING Whether Tax'd-wards be lyable to Recognition My Lord Chancellor THe late Earl of Dirletoun having no Children besides two Daughters and having an Estate consisting of Lands in Scotland and England did very judiciously at first resolve to marry one of them in Scotland and the other in England and in pursuance of this design he bestowed Elizabeth the eldest upon William Earl of Lanerick Secretary of Scotland Brother to Duke Hamiltoun but which was more a person admir'd for his heroick Vertues and whose Alliance was courted at any rate by the most eminent Families of both Kingdoms The younger of these Daughters named Diana was match'd thereafter to the Lord Cranburn and as the Earl of Lanerick could not but have justly expected all or at least the far greatest share of that Estate So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Portion Yet such is the capriciousness of old men that the Earl of Dirletoun did in anno 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun dispone the Lands of Innerweek Fenton c. failing Heirs-male of his own body to Iames Cecil his Grand-child and the Heirs-male of his body His Majesty finding that the said Estate was most illegally dispon'd to Iames Cecil without His consent as Superiour they holding Ward of Him and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick and so the Lands recogniz'd by the said Disposition did gift the saids Lands to the Lord Bargeny for the behoof of the Earl of Lanerick upon which Gift of Recognition there is now a Declarator pursued by the Lady Carnagie eldest Daughter to the said Earl of Lanerick who thereafter became Duke of Hamiltoun wherein she craves that it may be declar'd by you that she has the only Right to these Lands There are very many Defences propon'd for the Lord Cranburn which I shall endeavour thus to satisfie The first is Recognition has only place in feudo recto proprio whereas these Lands hold Tax'd-ward in which manner of holding all the casualities are taxed to a very inconsiderable sum which sum is designed to be the only advantage that shall accress to the Superiour and the reason why Ward lands recognize when they are sold without the Superiours consent is because the Superiour having so great interest in the Lands which hold by simple Ward as to have the Ward and Marriage of the Vassal the Law did therefore obliege him not to alienat that Land without the Superiours consent which reason ceaseth where the Ward is tax'd the Superiours interest becoming very inconsiderable by the Tax nor can it be imagin'd but that the Superiour having dispensed with the great casualities of Ward and Marriage has consequently dispensed with the said restraint Cui datur majus datur minus praesertim ubi minus inhaeret majori est ejus accessorium For satisfying which difficulties your Lordships will be pleas'd to consider that our Law appoints all Ward-lands to recognize if sold without the Superiours consent and makes no distinction betwixt simple and tax'd-ward the general is founded upon express Law and there is no express warrand for excepting tax'd-ward 2. Seing these Lands could not have been fold before they were tax'd by what warrand can they be sold since they were tax'd Seing though the casualities of Ward and Marriage were tax'd and thereby these casualities expresly remitted except in so far as they are tax'd yet there is no power granted to sell without the Superiours consent Nor is that priviledge remitted by the Superiour Et fendum alteratum in una qualitate non intelligitur alteratum in aliis actus agentium non operantur ultra concessa 3. The power of selling without the consent of the Superiour is different from the casualities of Ward and Marriage which are here only tax'd for Fewholdings are oft-times burdened with this restraint and this restraint was of old taken off expresly by warrands under the Quarter-seal without taxing the other casualities So that this priviledge differs from these and the one cannot be comprehended under the other The second Defence is that by the Feudal Law Recognition ob alienationem feudi est crimen delictum feudale against which error etiam probabilis ignorantia excusat as is clear lib. 2. tit 31. The words are Quod enim dicitur alinatione feudum aperiri domino intelligendum est cum à scientibus alienatum est beneficium which are the words of the said Law whereupon Socinus reg 153. though he do give it as a rule that Emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit conform to the civil Law l. ffinal C. de jure emphyteutico he subjoyns these words Fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam and accordingly Craig de recognitione lib. 3. diages 3. and in the case of disclamation lib 3. diages 5. layes down for an undoubted principle that ignorantia crassa excusat feudalia delicta And here the subject of the question is not in jure in thesi whether Ward-lands should recognosce but in facto hypothesi his Right being of the nature and in the terms foresaid he might dispone without hazard as to which an error in him who was an illiterat man was very excusable especially having consulted Peritiores and having been assur'd by very eminent Lawyers that there was no hazard in disponing those Lands without the Superiours consent they holding Tax'd-ward which was sufficient to have defended him in feudo amittendo To which it is answered that ignorance of the Law excuses no man and the case having been at best dubious the Vassal should not have hazarded upon what the Law might construct to be a disowning of his Superiour and since every man is oblieged to know the nature of his own Few the Law doth presume that every man doth know it Nam quod inesse debet inesse presumitur and therefore Craig doth very well conclude pag. 344. tit de recognitione that ignorantiam pretendens vix audiendus est cum sit crassa ignorantia feudi sui conditionem ignorare and though he observes there that excusabitur qui feudum suum non militare credidit cum militare est yet that cannot be
the thing lent simply but either the thing or value at the option of the receiver as was clear because the receiver might have oppon'd compensation against the lender when he was pursuing for the thing lent or might make use of the thing lent as he pleased which was not our case because the receivers of the Guns could not have retained the same or have rejected compensation against the Lender though the lend had been damnified but it was in the option of the Lender to have call'd either for the Guns or the estimation and this estimation and value was agreed upon to the end that the value might be repeated if the Guns were lost through negligence or deterioration but not if they were lost vi majore or casu fortuito 2. By the expresse words of the Bond the value is only to be restored in case the Guns be damnified but there is no provision made against their being lost nor can that be presumed to be the meaning of the Parties because ille presumitur sensus verborum qui est rei gerendae aptior and casus fortuitus is very contrary to the nature of commodatum 3. This is not only casus fortuitus but insolitus to which no contract is ever extended and this case of the Cannons being taken out of the Sands could never have been foreseen seing it is absolutely extrinsick both to the use of Cannons and to the ordinar hazards of Cannons and it was unusual and ominous for a Scots man to provide against their being over-run by the Usurpers 4. These Guns had been lost if the lender had retained them seing the Usurpers after the taking in of Dundee made prize of all their Ships and Guns To which it was duplied that the former Law was oppon'd bearing that the receiver commodati estimati in general suscipit omne periculum and that is properly commodatum estimatum ubi intervenit taxatio pretii and though there may be such a commodatum estimatum as is mentioned in the reply yet that omne commodatum estimatum is of that nature is denied and seing the answer is founded upon an express and general Law it cannot be taken away but by a Law as express clearing that there is no commodatm estimatum but in the case instanced in the reply Likeas the Interpreters and particularly Faber ad h. l. give instances of commodatum estimatum in the case where the thing estimat is to be restored and estmatio in general produces that effect of transferring the hazard as will appear per l. 1. 〈◊〉 1. ff de estimatoria by which it is likewayes clear that if the thing it self be not given back the estimation must be delivered and that the estimation extends not only ad deteriorationem sed etiam ad interitum Likeas in the general estimatio is called a kind of vendition as is clear by Calvin in his Lexicon upon that word and the citations there adduced and in venditions the receiver undergoeth all hazard and therefore he should run the same hazard in commodato estimato As to the second It is answer'd that he who is oblieged to deliver any thing free from all hurt and damnage is much more oblieged to deliver back the thing it self for it is probable that he who guarded against the lesse danger would guard against the greater Whereas it is alledged that this must be the meaning of the parties the former rules are oppon'd and it is added that this case could never be called casus insolitus nor fortuitus in respect that is casus fortuitus which the skillfulest or wisest man could not foresee but so it is every wise or prudent man might have and could not but foresee this and the brokard rei gerendae aptior is only extended to regular Contracts but not to irregular Contracts as this is wherein it is confest by both parties that they intended to transgress the ordinar rules and nature of commodatum estimatum and to wrest the nature of this Contract to their particular case and certainly sensus aptior rei gerendae at that time was that the lender who might have secured his own Guns and who was not oblieged to lend them did design to secure himself against all hazards when he caused estimat his Guns else why should he have caused estimat them And to the third where it is alledged that the raising of Guns out of sand is not the hazard which Guns ordinarily run It is answered that the burying and sinking of Cannons is very ordinar but it being foreseen in general that these Guns might perish by the Usurpers and in that quarrel that was sufficient though every particular circumstance was not foreseen for if the Guns had been stollen away by night or had been taken in the return certainly the receiver would have been lyable and yet that is not a more ordinar way of lossing Guns then this now instanced To the fourth bearing that those Cannons had been lost however It is answered that the charger is not oblieged to debate what hazard they would have run he having secured himself by a Bond as said is and that might be aswell alledged in venditions and yet none ever alledged that the buyer did not run all hazards of the thing bought and was not oblieged to pay the price because the seller would have lost the thing sold if it had remained with him but the truth is the Skipper nor no Burgess of Dundee wants any of those Guns which were aboard in their Ships at that time and it is probable that though the Ship and Goods had been taken from this pursuer he had none to blame but these Defenders who by borrowing his Goods dissabled him to venture to Sea with his Ship nor can it be imagin'd that the burying of Goods in presence of the whole Town and leaving their Carriages open to the Usurpers was exact diligence nor did ever the receivers after the Guns were taken away either inform the chargers that they might do diligence or make application to the Usurpers for restitution as Dundee St. Johnstoun Crail and other Towns did and wherein they prevail'd so that these Defenders are not only lyable ad casus fortuitus ex natura commodati estimati but for not doing exact diligence ex natura commodati proprii The Lords found that the Borrowers were not lyable to pay the price since the Cannons were lost casu fortuito vi majore For Sir Thomas Stewart of Gairntully against Sir William Stewart of Innernytie FIFTH PLEADING How Fury and lucid Intervals may be proven THe deceast Sir William Stewart finding his Daughter Jean fit enough to marry did provide her to a Portion of twenty thousand Merks in which though he substitute Sir William her Brother and others yet your Lordships did by a solemn decision find that she remained still in the Fee and might have disponed notwithstanding of the quality of the substitution and therefore you did sustain a Right