to the discretion of good men and therefor did differ little from Arbiters until they came to have fixed Customs and Statutes clear and known which could not come the length of a sufficient Rule for all Cases for there will ever be new Cases occurring and therefore the best expedient to give this most desireable Security is to show that Judges do alwayes proceed suitably to themselves without interfeiring and that they make not Law like the Delphick Sword bowing or bending to the several Parties but as a firm and stable Rule which will ply to no obliquity but whatever must be regulate by it must be applyed to it and be straight like it and so quadrat one to another which can be no way better known than by the publishing and comparing of Decisions whereby it may be seen that like Cases have like events and that there is no respect of persons in Judgment all men cannot be Lawers nor can the most part have discretion enough to understand aequum bonum yet few will be found to want capacity to compare Decisions and so perceive if they be congruous and uniform and if they find them such they may easily be perswaded that their uniformity could be by no other Rule than Law and Justice It is no small prejudice to any Nation to make them believe or suspect that their Rights are not secured in just hands for that overturns their quiet and security The most part will never have a Pursuit determined against them and far fewer will find themselves worsted by personal considerations But no man can say but he may and most do fear that they shall be involved in Law Suits and if they be not perswaded to find a sure Remedy by just and knowing Iudges then all is unsecure and disquieted so that it is more the advantage of a Nation that their Judges were but reputed just though they were not then that they were just yet were reputed unjust for this Case toucheth and grieveth all whereas the former can reach but a few King Iames the fifth who Institute the Colledge of Justice Ordered one of the Lords to keep a Journal of their Decisions with which Henry Sinclar Dean of Rastalrig was entrusted and did observe the same for the space of ten years as Maitland Hadingtoun Hope Balfour Spotswood Dury and several others since have done And after Our Sacred Soveraign who now Reigns did Restore the Colledge of Justice to it 's ancient Constitution and Splendor and did make a full Nomination of the Senators thereof and Call most of the Eminent Advocats to the Bench so that after a long interruption the Session was almost wholly new therefor it was very necessary that their Decisions should be Observed which induced me being one of that Nomination to undertake that Task which I did constantly follow making up this Journal of all the Decisions that had any thing of difficulty or importance in them which I did design to leave behind me as a Token of my most devoted affection to that excellent Society The Colledge of Iustice in which with much satisfaction I spent the far greatest part of my Life and was very happy in the mutual affection of my Colligues both while I was at the Bar and on the Bench yet the weight of the Charge I did bear which in a few years sunk my Predecessor Sir Iohn Gilmour though a man of great strength of Body and Spirit when he undertook that Office made me consider that it was fit for me before Age or Infirmity should make that burden more uneasie to have some remnant of my Life of which I might be Master without Diversion for which some of your Lordships and others knew my Resolution to retire long agoe and therefore I did propose to your Lordships the publishing of these Decisions wherein I have your allowance and approbation I shall need to say nothing as to these Decisions in behalf of your Lordships I hope the Matter will speak more for your Honour than to need any thing further from me I might say great things of that Judicature and of your selves particularly but I shall forbear least any should think it might look like flattery and therefore shall only add a little for my self I did not pick out such Decisions as I liked best leaving out others which might have showen contrariety nor did I express my opinion when different from the plurality but I had ever that Deference to your Judgement that I did not omit any thing that was said for it much less did I magnifie my own opinion against it though I cannot say that I did oft differ from it I did form this Breviat of these Decisions in fresh and recent Memory de die in diem as they were pronunced I seldom eat before I Observed the Interlocutors I judged of difficulty that past that day and when I was hindered by any extraordinary occasion I delayed no longer then that was over It was neither feazable nor fit that I should set down the large Pleadings or the Written Informations of Parties I did peruse them throughly and pitched upon the Reasons which were of moment as to the points determined whereas in the same Informations there were many obvious clear Points insisted on which I omitted I did alwayes relate the Case as it was proposed or resumed to the Lords and with the important Reasons offered by Parties I added these which occurred to the Lords in their Deliberations so that all the Reasons and Motives upon which the Lords proceeded will neither be found in Parties Informations nor Clerks Minuts for though it was not fit for the Lords to suggest any Point of Fact not alleadged by Parties Yet it was most proper for them to supply the Points of Law arising from the Fact proposed And in such a Breviat it is not to be expected that I should at large set down the Elegant and Eloquent Disputes of the Lawers but that I should express the Matter and Moment of their Reasons with the greatest plainness and equality that I could It is like some of my Colligues may have observed other Cases than these and in these may have worded Interlocutors otherwise and adduced some other Reasons which cannot at all weaken the Credit of these for some Decisions were past when I kept my Course in the Outter-House and others were Reported long after the Informations were given which might escape me and many I thought of no such intricacy or importance as made them fit to be published but I do with all sincerity and confidence assert that I did omit none I found of difficulty upon any design to cover inconsistencies or any other end of that kind nor is it of import what the words were if the Matter were truly exprest for no Observer did ever look into the Clerks Minuts and different Observers will not alwayes have the same Opinion of the importance of Reasons nor will find themselves obliged to adduce all
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâ—ri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâ—do to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ— is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
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
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupil◠and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fathe◠Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
formal and solemn according to the custom then in uâ—e the posterior being upon Denunciation at the Mercat Croâ—s of the Sheriffdom and the other at the Mercat Cross of the Regality when Regalities were supprest by the Vsurpers and was led at Glasgow Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyâ— of Pitcon An Apprizer was â—ound comptable for the whole Rents of the Lands he possest by his Apprizing both for his Ommission and Intromission and that not only till his Apprizing was satisfied but for all years subsequent that he continued to intromet with any part Ianuary 26. 1671. Cass contra Cunninghame An Apprizing coming in the person of the apparent Heir of the principal Debitor was â—ound extinct by satisfaction of the â—ums payed by the apparent Heir therefore summarly without Reduction not only as to the Estate of the apparent Heir but as to the Estate of a Cautioner â—or that Debt which was also Apprized February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester although there was no Diligence upon the Apprizing for nine years before the Arrestment and that there was no Infeftment or lawful Charge on the Apprâ—zing in respect it was a prior judicial Assignation requiring no Intimation February 23. 1671. Lord Iustice Clerk contra Fairholme Apprizings deduced since Ianuary 1652. within year and day of the first effectual Apprizing were found not to be compted by a year from the Infeftment or Charge by which the Apprizing becomes effectual but from the date of the first effectual Decreet of Apprizing by the Act 1661. betwixt Debitor and Creditor Which bears That all such Apprizings shall be as if one Apprizing had been led for the whole Iuly 4. 1671. Laird of Balfoure contra Dowglas An Apprizing was found satisfiable by Exception or Reply as being to the behove of the Debitor or his eldest Son for the sums that were truly payed out by the Act of Parliament 1671. Albeit the Apprizing was Expyâ—ed Ibidem An Apprizing was Sustained though it proceeded on a Bond payable upon Requâ—sition and that the Claim of the Apprizing did make mention of the Requâ—sition seing the Requisition was done and is now produced and though the Messenger having met at the dyet appointed for the Apprizing did adjourn the Court of Apprizing till the next day in respect of a great Rain and that the place designed for the Apprizing was upon the open Field and though the place of the Apprizing was by diâ—pensation neither at Edinburgh nor at the Head Burgh of the Shire and past as a common Bill of course Iuly 12. 1671. Heirs of Lundy contra the Earl of Southesk and others In Apprizings Messengers are prohibite by Act of Sederunt to continue the dyer of Apprizings except upon absolute necessity that Parties interressed be not put to uncertain attendance and likewise diâ—penâ—ations for the place of Apprizings is prohibite to be past of course amongst other common Bills without being Read Ibidem An Apprizing acquired by the appearand Heir of the Debitor was found satisfiable by any other of the Defuncts Creditors by paying what the appearand Heir truly payed therefore albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seing his Infeftment by which the Right real is Established in his Person and his Author was Denuded was after the said Act and albeit the Apprizing was not expired when the appearand Heir acquired Right but that it became to expire continuing in his Person and that it was Redeemable within ten years from the date of the acquiring but not from the expiring of the Legal Iâ—ne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel An Apprizer was found not obliged to restrict his Possession to his Annualrent in favours of posterior Apprizers by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debitor but seing the first Apprizer would not admit the posterior Apprizers to possess he should be comptable for the whole Rental from the time of the Exclusion Iuly 28. 1671. Murray contra Earl of Southesk and others ARBITERS got Warrand on a Supplication to Cite Witnesses before them Ianuary 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants ARRESTMENT was not elided because the sum arrested was discharged before the arrestment seing it appears the Discharge was not delivered to the Party in whose hands the arrestment was made nor none to his use before the arrestment December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun An Arrester and an Assigney competing the Assigney was preferred because the Arrestment was loosed albeit the sum Arrested remained still in the same hands because the Arrestment was on a dependence and no Decreet thereupon against the principal Debitor Iuly 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady VVolmet Arrestment cannot be loosed without Caution super cautione juratoria Iuly 16. 1661. Colledge of St Andrews Supplicant Arrestment was found not to affect the Sallaries of the Lords and the Kings Pensions conform to a Letter and Act of Sederunt February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day was found null by Exception February 3. 1663. Oliphant contra Dowglas of Dorâ—och Arresters Competing the second being on Letters of Supplement against a Party ouâ— of the Countrey was preferred to the first being at his Dwelling Place without Supplement Ianuary 20. 1665. Lord Lowre contra Givon Arrestment on a Bond not Registrate was found looseable as not being on a Dâ—â—reet of Registration or any other and after the loosing the Arrester was found preferable to a posterior Assigney seing the Money was yet in his Hand in whose it was Arrested February 7. 1665. Grahame contra Brown and Doctor Martine Arrestment being laid on in the hands of a Party who Entred in a Minute or Bargain of Land though he passed therefrom yet the price was ordained to be made forth-coming November 23. 1665. Campbel contra Doctor Beatoun Arresters having both obtained Decreet in one day were found not to come in equally but the first Arrester was preferred have done equal diligence February 1. 1666. Collonel Cunninghame contra Lyel An Arrester and Comprizer Competing for a Sâ—m whereupon Apprizing was led at the Instance of the common debitor whereupon no Infeftment followed yet the Arrestment upon the said first Apprizers debt was not â—ound habilis modus to make forthcoming the Sum Appryzed for but the second Appryzer was preferred to the Arrester February 22. 1666. Lockhart contra Lord Bargenzie An Arrestment was found to give Action after the death of the debitor whose Goods were Arrested without a new Decreet against any Repreâ—enting him seing he died at the Horn and so could have none to Represent him in mobilibus February 19. 1667. Givon contra Hume here the Defuncts Donator to his Escheat concurred An Arrestment of Annualrents laid on currâ—nte termiâ—â— was preferred
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
to the Lords concerning Prizes January 3. 1667. Warrand for general Letters for the Contribution due out of Benefices to the Lords November 17. 1668. Oaths to be taken for the price of Fowls January 15. 1669. Act anent Extracts of Registrate Writs bearing the Procurators names though not Subscribing December 9. 1670. Act anent Extracting Acts and Decreets Ianuary 20. 1671. Act against Magistrates of Burghs for letting Prisoners for debt go out of the Tolbooth Iune 14. 1671. His Majesties Order to the Commissioners of His Thesauray to free the Lords from the Cess July 19. 1671. Act for Keeping the Bars November 3. 1671. Act concerning priviledged Summons July 21. 1672. Act anent payment of Dues for Summons containing two Diets July 11. 1672. Act concerning Bankrupts January 23. 1673. Act Ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by three Lords in vacant time June 24. 1673. Letter anent Pryzes July 8. 1673. Act for Ordering new hearings in the Outer House July 11. 1673. Letter from His Majestie against appeals June 17. 1674. Act concerning Acts before Answer July 23. 1674. Act for Tryal of those presented to be Ordinary Lords of Session July the last 1674. Act upon the Marquess of Huntly's disowning Appeals January 26. 1675. Act concerning Prisoners for debt February 5. 1675. Act anent Bills of Suspension February 9. 1675. Act Ordaining Processes after Avisandum to be carryed to the Ordinary that same day and Reported in his Week June 2. 1675. Heugh Riddel sent to the Plantations July 20. 1675. Act anent passing of Bills for liberty out of Prison July 21. 1675. Act concerning the granting of Protections February 1. 1676. His Majesties Letter concerning the Clerks June 20 1676. Act concerning the Registers Iuly 4. 1676. Act for Inventaring the Registers Books July 13. 1676. Act anent the manner of Booking Decreets of Registration November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires January 4. 1677. Act concerning Arrestments February 1. 1677. Act concerning Advocates June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension July 3. 1677. Act concerning the Suspensions of Protestations July 10. 1677. Act against Solicitations November 6. 1677. Act concerning Bills relating to concluded Causes November 9. 1677. Suspensions of the Excize to be past only in presentia December 6. 1677. Warrand anent Precepts for giving Seasine upon Retoures February 15. 1678. Act in favours of the Lord Register February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords July 23. 1678. Act discharging Advocates and Writers Servants to Write their Masters Subscription July last 1678. Act Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers January 3. 1679. Orders for payment of the Dues of the Signet where Suspensions are appointed to be discust upon the Bill January 24. 1679. Act in favours of Intrant Advocats February 7. 1679. Act anent Executors Creditors November 14. 1679. Act anent the Registration of Hornings November 19. 1679. Act against Solicitations December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited February 19. 1680. Act against Petitions for alteration of Acts Extracted February 24. 1680. His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session June 8. 1680. Act concerning Nottars July 29. 1680. Act concerning Bills of Suspension November 9. 1680. Act anent the marking of Advocates compearance for Defenders November 25. 1680. Act in Favours of the Macers February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh February 22. 1681. THE ACTS OF SEDERUNT OF THE LORDS of SESSION Beginning the 5th Iune 1661 and ending in February 1681. ACT for Vniformity of Habit by the ordinary Lords Iune 5th 1661. THE Lords did find that the whole fifteen ordinary Lords of Session of whatsoever Place Dignity or Title they be should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming ACT for continuing Summonds and writing in Latine as formerly Iune 6. 1661. THE Lords taking to their serious consideration of how dangerous consequence the alteration of Formes and Customes is They have therfore ordained and hereby ordain all Summonds which formerly abode Continuation and shall be insisted in before them to be continued in time coming and an Act to be made thereanent and Letters to be direct thereon as was in use to be done before the Year 1651 not exceeding the Rates and Prices formerly exacted And also considering that during the Power of the late Usurpers the use and custome of writing in Latine was then discharged by the pretended Commissioners for Administration of Justice Therefore the saids Lords ordain all Charters Seasings and other Writes of that nature alswell such as pass the Seals as other ways which were in use to be formed and written in Latine to be continued in the same Language as formerly before the Year 1652. And to the effect none may pretend Ignorance hereof ordains these Presents to be published at the Mercat Cross of Edinburgh after sound of Trumpet by a Macer ACT anent Warnings Iune 11th 1661. THE saids Lords ordain That all wakenings of Processes lying undiscust be execute upon 24 hours against all such Persons as are for the time within Edinburgh or Leith and upon 6 dayes against all other Parties within this Kingdom and upon fifteen dayes against all such Persons as are out of the Kingdom ACT for retaining the Principal Writes presented to the Register and giving forth only Extracts thereof THE which Day the Lords of Council and Session taking into their consideration That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds Contracts and other Writes given in to be registrat did tend to the hazard and prejudice of the Leidges and was contrary to the practise formerly observed They do therefore ordain that the Clerks of Session and all Clerks of Inferiour Courts and Judicatories shall henceforth keep and retain the Principal Writes for which they shall be answerable and give forth only Extracts thereof as formerly before the Year 1651. and ordains these Presents to be published at the Mercat Cross of Edinburgh Likeas the saids Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds Contracts and other Writes to be given in to them to be registrat and that they be countable for them and for their Servants so long as they shall give them trust thereof And that once in the two years they deliver them to be keeped by the Clerk of Register with the Publick Records of the Kingdom ACT for Protestation Money Iuly 4. 1661. THE said day the Lords taking to their
Consideration the Litigiousness and Malitiousness of some Suspenders who upon frivolous and unjust Reasons and Grounds purchase Letters of Suspension and Advocation and will not at the Day of Compearance nor on any other of the Days appointed for Production of the saids Principal Letters of Suspension and Advocation produce the respective Letters aforesaid but keep the famine up of purpose to trouble vex and put to farther Charges and Expenses the Chargers and Parties Persuers in the Principal Cause Advocated to the saids Lords Therefore the saids Lords ordain the several Sums of Money following to be payed by the saids Suspenders and Purchasers of the saids Letters of Advocation to the Chargers and Parties Pursuers in the Principal Cause Advocated to the saids Lords And that upon their purchasing of Protestation or Act of Remit against the said Suspenders and purchasers of the saids Letters of Advocation viz. If the sum charged for be an hundred merks or within the same the sum of 8. lib. Scots and if the sum be above 100. merks or not a liquid sum the sum of ten pounds money foresaid And for every Remit the sum of 15. lib. Scots and ordains an Act to be extended hereupon in manner foresaid ACT for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor Iuly 31. 1661. THE Lords of Session considering that in prosecution of the Act of Parliament of the 12. of Iuly last anent Creditor and Debitor such Debitors as are far off the Countrey or are or shall be disabled by Sicknesse to come here to take the benifite of the Act will be thereby prejudged of the benefit thereof if some course be not taken to prevent the same They do therefore impower the Lord President or the Lord Register or any two of the Lords of Session upon Petitions and sufficient Attestations of the Sicknesse of any Debitor or of their being forth of the Countrey to give Commission during this ensuing Vacation to such Persons in the Countrey as they shall think fit to receive the Oath and Declaration of the Debitors conform to the said Act and to report the same betwixt and the day of November next to come to the Clerk of Register or his Deputs Clerk to the Bills to be Recorded with others of that nature ACT discharging Lessons the last moneth of the Session November 28. 1661. THE same day the Lords considering that in the end of the Session the giving way to Young-gentlemen to give proof of their Literature by making publick Lessons is greatly prejudicial to the Leidges that time which is appointed for hearing and discussing of Interloquitors being taken up with the saids Lessons Therefore the Lords renews a former Act made to the effect after-specified in Anno 1650. And of new ordains in all time coming That any who are to make their Lessons shall come and make them at such times of the Session as the hearing of them be not prejudicial to the administration of Justice and that none shall be heard to make such Lessons any time the last moneth of of the Session ACT anent Executors Creditors February 28. 1662. THE which day the Lords of Councill and Session considering the great confusions that arises amongst the Executors of Defunct Persons and prejudices sustained by many of them in prosecution of their respective diligences against the Executors of Defunct Persons and otherways by obtaining the saids Creditors to be themselves decerned Executors Creditors to the Defunct in prejudice of other Creditors who either dwelling at a far distance or being out of the Countrey or otherways not knowing of the death of their Debitors are postponed and others using sudden diligence are preferred In respect whereof and for a remeid in time coming The saids Lords declare and ordain that all Creditors of Defunct Persons using Legal diligence at any time within half a year of the defuncts death by citation of the Executors Creditors or intrometters with the Defuncts Goods or by obtaining themselves decerned and confirmed Executors Creditors or by citing of any other Executors confirmed the saids Executors using any such diligence before the expiring of half a year as said is shall come in pari passu with any other Creditors who have used more timely diligence by obtaining themselves decerned and confirmed Executors Creditors or otherwise It is always declared That the Creditor using posterior diligence shall bear a proportional part of the charges wared out by the Executor Creditor first decerned and confirmed before he have any benefit of the Inventarie confirmed and that it shall be lawful to the saids Creditor to obtain himself joyned to the said Executor and ordains these presents to be insert in the Books of Sederunt and to be Proclaimed at the the Mercat Crosse of Edinburgh ACT anent granting of Bonds be appearand Heirs whereupon Apprysings or Adjudications may follow in prejudice of the Defuncts Creditors THE said day the Lords of Council and Session taking to their consideration the manyfest Frauds and Prejudices done by appearand Heirs to the Creditors of their deceast Fathers or other Predecessors in their just and lawful debts Therefore and for preventing any such fraud for the future the saids Lords declare That if any appearand Heir shall grant Bonds whereupon Adjudications or Apprysings shall be deduced to their own behove or that the saids Apprysings or Adjudications shall return before or after the expyring of the Legal Reversion in the Persons of the saids appearand Heirs or any to their behoves In either of these cases the saids Apprysings or Adjudications shal no ways defend them against their Predecessors Creditors but that they shall be lyable as behaving themselves as Heirs to their predecessors by intromission with the Rents of their Estates so Adjudged and Apprysed nor shall it be lawful to them to renunce to be Heirs after such intromission and ordains an Act to be made thereupon and to be registrate in the Books of Sedernut and to be published at the Mercat Cross of Edinburgh ACT anent Advocats Expectants THE said day the Lords of Council and Session understanding that the greatest number of the Advocats and Expectants admitted since the first of Ianuary 1648. years Are deficient in paying of Dues to the keepers of the Box for the Advocats to wit twenty merks for every Advocate and ten merks Scots for every Expectant to the prejudice of the Box appointed for the poor and others their publick affairs Therefore the said Lords ordain all Advocats and Expectants admitted since Ianuary 1648. who are deficient in payment of the saids dues and all others who shall be admitted and receive the said respective priviledges in time coming to pay the saids dues to the keeper of the Box for the time And ordains Letters of Horning and Poynding upon sex days to be direct against the deficients upon a subscribed Roll by the Thesaurer and ordains no suspension to passe but upon consignation ACT discharging
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
to you the Subjects of the Kings of Spain and Sweden with whom we have particular Treaties which We shall send to you And wâ—ose Ships and Goods are to pass free they having such Passes as are agreed upon of which We did send Copies to Our Privy Council and so We bid you Farewell Given at Our Court at Whitehall the twenty seven day of December One thousand six hundred sixty and six And of Our Reign the eighteen year By His Majesties Command Subscribed thus LAUDERDAIL VVarrand for General Letters for the Contribution due out of Benefices to the Lords November 17. 1668. THE Lords have Ordained and hereby Ordain Letters and Executorials of Horning to be Direct at the Instance of these Ordinary Lords who have been admitted since Iune 1663. or shall be admitted hereafter against the Arch-bishops Bishops Priors Heretors Liferenters Feuars Farmers Tennents and Tacksmen of the Prelacies within this Kingdom for payment to them of their respective proportions of the Contribution Money payable out of the saids Prelacies and Allocat to their Predecessors in whose place they have succeeded by an Act of Sederunt of the date the 11. day of Iune 1663. and a Roll subjoyned thereto containing the particular division of the Contribution Money amongst the saids Lords and that for all Years and Terms since their admission and Entry and Yearly and Termly in time coming Oaths to be taken for the Price of Fowls Ianuary 15. 1669. THE which day It being represented to the Lords That the Magistrates of Edinburgh desired to know whether they might warrantably exact the Oaths of the Poultrie-men and In-keepers concerning their contravention of the Acts lately made for the price of Fowl drest and undrest The Lords finds that the Magistrates of Edinburgh may and ought to exact the Oaths of the contraveeners of these Acts either the Poultrie-people who sell the Fowls undrest or In-keepersâ— who sell them drest And recommend to the Magistrates to be careful in the speedie and exact execution of these Acts. ACT anent extracts of Registrate writs bearing the Procurators named though not subscribed December 9. 1670. THE Lords of Council and Session do grant warrand to the Lord Register and the Clerks of Session his Deputes to registrate such Bands Contracts and other Writs as shall be given in to them to be registrat and therein to insert the consent of Advocats as Procurators to the Registration as they were in use to do formerlyâ— and accordingly to give out extracts thereof notwithstanding that the Advocats do not subscrib their consent And appoints this warrand to continue untill further order Likeas the Lords declare that any Extracts given out by the Clerks in manner foresaid since the first day of November last are warrantably given and cannot be quarrelled upon that ground that the Advocats consent to the Registration is not subscribed ACT Anent Extracting Acts and Decreets Ianuary 20. 1671. THE Lords enacted and ordained that no Act or Decreet done either in the Inner or Utter-house shall be extracted untill 24 hours elapse after the same is read in the Minut Book ACT against Magistrats of Burghs forletting prisoners for Debt go out of the tolbooth Iune 14. 1671. THE Lords considering That albeit by the Law Magistrats of Burghs are oblidged to retain in sure warde and firmance Persons incarcerat in their Tolbooths for Debt Yet hitherto they have been in use to indulge Prisoners to go abroad upon several occasions And it being expedient that in time coming the foresaid liberty taken by the Magistrates of Burghs should be restrained and the Law duely observed Therefore the saids Lords do declare that hereafter it shal not be lawful to the Magistrates of Burghs upon any occasion whatsomever without warrand from His Majesties Privy Council or the Lords of Session to permit any Person incarcerat in their Tolbooth for Debt to go out of Prison except in the case of the Parties sickness and extream danger of Life The same being always attested upon oath under the hand of a Physician Chirurgion Appothecary or Minister of the Gospel in the place Which Testificat shall be recorded in the Town Court Books And in that case that the Magistrats allow the Partie only liberty to reside in some house within the Town during the continuance of his sickness They being always answerable that the Partie escape not And upon his recovery to return to Prison And the Lords declare that any Magistrats of Burghs who shall contraveen the premisses shall be lyable in payment of the Debtsâ— for which the Rebel was incarcerat And appoints this Act to be intimat to the Agent for the Royal Burrows and to be insert in the Books of Sederunt His MAJESTIES Order to the Commissioners of His Thesaury to free the Lords from the Cess Iuly 19. 1671. CHARLES R. RIght trusty and well beloved Cusing and Counciller right trusty and well beloved Councillers and trusty and well beloved We greet you well Vpon the humble desire of President and Senators of Our Colledge of Iustice Signified unto Vs by Our Secretary We have thought fit to express Our so great tenderness of their Priviledges as to discharge the President and all the ordinary Lords of Session of their proportions of the Currant Supply granted unto Vs by the late Session of Our Parliament although they gave their Bond for the same Therefore Our pleasure is and We do hereby Authorize you to give Command nor to exact any of the said Supply from the proper states of the said President and ordinary Lords of Session but that the same be discharged And if any part thereof be already Collected that it be payed back to them respectively for which this shall be your warrand And so We bid you heartily Farewell Given at Our Court at Windsor Casile the 12 day of Iuly 1671. and of Our Reign the 23 Year Subscribed thus by his Majesties command Lauderdail ACT for keeping the Barrs November 3. 1671. THE Lords of Council and Session considering that there is great disorder and confusion occasionâ—d by the thronging in of the Advocats men and others upon the Clerks and their Servants in the Utter-house before the ordinary Lord go to the Bench. And after twelve a clock at the reading of the Minut Book For remeid whereof they ordain the Minut Book in time coming to be read in the nethermost end of the Loft appointed for the Advocats Servants And prohibit and discharge all Advocats Servants and other persons who are not licenced and allowed to enter or remain within the Innermost Barr of the Utter-house where the Clerks and their Servants stays under the pain of three pounds Scots to be applyed the one half for the use of the Poor and the other to the Macers And to be further censured by imprisonment or otherways as the saids Lords shall think sit And to the end the said Act may be more duely observed The Lord do ordain authorize and require the Macers to exact
the said â—ine of three pounds Scots from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same that they carry them to Prison untill they make payment thereof Certifying the saids Macers that if upon delation of them by any of the Clerks they shall be found negligent in performing of what is hereby enjoyned to them they shall be fined in the said sum of three pounds Scots and imprisoned during the pleasure of the Lords And this Sentence to be inflicted upon the Macers or other transgressors of this Act as oft as they shall be found to contraveen the same ACT concerning Priviledged Summons Iuly 21. 1672. THE Lords considering that divers Summons as declarators and others which by the constant from and practice of this Kingdom did always abide 21. days warning have of laâ—e been execute sometimes upon six days as being priviledged by deliverance of the Lords upon Bills given in for that effect and seeing these Bills being dâ—awn and given in by Writers to the Signet do passe of Course without perusal or consideration thereof by the ordinary which hath given occasion to the foresaid abuse And finding it expedient that it be determined for the future what Summons shall be Priviledged Therefore the saids Lords do ordain That in time coming all Summons shal come in upon 21 days warning And that none be priviledged by the Lords deliverance or otherways except these following viz. Removings Recent-spulzie and Recent Ejections where the Summons is Execute within 15 days after the comitting of the deed intrusions and coming in the Vice Causes alimentary Exhibitions Summons for making arrested Goods forthcoming Transferrings Poyndings of the Ground Waknings Special Declarators Suspensions Preventoâ—s and Transumpts And that Recent-spulzies Ejections Intrusions and Succeeding in the Vice be execute upon 15 days and that all the rest of the foresaids Summons be Execute upon six days and that the second Citation be likewise upon six days And it is further declared That all the Summons above-mentioned shall be priviledged as a foresaid whither the Summons bear a priviledge or not And the Lords do hereby prohibit and discharge the Writers to the Signet to Write Form or Present to the Clerks to be put in any Bills for priviledging any Summons but these above-exprâ—st Certifying such as shall coutravâ—en that for the first fault they shall be fyned in one hundred merks Scots to be applyed for the use of the poor and for the second fault they shall be deprived of their Office It is always hereby declared that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh or the contiguous Suburbs thereof who may be Summoned by the second Citation upon 24 hours conform to the custom formerly observed ACT anent payment of dues for Summons containing two dyets Iuly 11. 1672. FOrasmuch as the Lords after mature dâ—liberation did think fit That the former custom of continuing Summons and taking out of Act and Letters thereupon in all such Causes and Processes as formerly did require and abide continuation should be laid aside in time coming And that in Place and Lieu thereof the Summons in all Process of the nature foresaid should contain two distinct warrands for citing the Defenders at two several times and to two several dyets and dayes of Compearance with the same Certification as before was usual and contained in the first and second Summons respective And that Procâ—ssâ—s should be granted in the Causes foresaids upon Summons containing the warrands above-mentioned and Execute conform to the same as formerly was granted upon Summons Act and Letters And upon an overture given in and approven by the Lords of Articles An Act of Parliament hath followed and is made to that purpose As the Act of Parliament intituled Act discharging second Summons at length proports And seing the Lords of Session when they had the said alteration of the former Custom under their consideration thought it no ways reasonable that thereby either His Majesties Secretary or the Clerk of Register or the ordinary Clerks of Session his Deputes should be prejudged of their dues and profits formerly belonging to them respective And in regard the Summonds which are to contain the said distinct warrands for Citation are in effect and upon the matter two several Summons and are equivalent to Summons Acts and Letter and have the same effect to all intents and the profits formerly arising from all Acts of Continuation and Letters thereupon are a considerable part of the Dues belonging to the Lord Secretare Lord Register and his Deputs for their Incouragement and Service in their respective Officesâ— and upon the considerations foresaid it was resolved That notwithstand ing the said alteration the same should be continued and secured to them in manner after mentioned Therefore and in order to their satisfaction The Lords of Session does Statute and Ordain That for the Signing of all Summons which formerly did abide continuation and in lieu thereof shall now and hereafter continue the said warrands for two several Citations the keepers of the Signet shall have and may take as much as formerly he might have taken both for Summons and Letters while the same were signeted a part As also it is hereby appointed That all the saids new Summons containing two distinct warrands for citing to the Defenders two dyets be subscribed by the Clerk of Register or in his absence by one of his Dâ—puts or the ordinary Clerks of Session who at the subscribing thereof are to receive for the same the dues formerly payed for Act and Letters And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons for two or more Citations but such as shall be subscribed by the Clerk of Register or his Deputes as said is and that no Process be granted upon auy such Summons unlesse they be subscribed by them in manner foresaid ACT concerning Bankrupts Ianuary 23. 1673. FOrasmuch as by an Act of Sederunt of the 26 February 1669. It is Satute an Ordained that all Decreets of Bonorum in time coming should contain a Clause ordaining the Persons in whose favour the Bonorum should be granted To take on and weare the habit of Bankrupts Which is a Coat or upper Garment which is to cover the Parties Cloaths Body and Armes whereof the one half is to be of a Yellow and the other half of a Broun Colour and a Cape or Hood which they are to wear on their Heads Partie-coloured as said is which habit they are to take on before they come out of Prison and come out with it upon them And that it shall be lawful to the Creditors to seiz upon and imprison any of them who shall be found wanting the foresaid habit And the Lords considering that this Course for preventing and punishing of Bankrupts hath through the in-observance of the same proven
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
with their Clients or others under the pain of being utterly excluded from exercising any Office in or depending upon the Colledge of Iustice and that all Advocats to be admitted hereafter have the same declared to them as a part of the Oath de fidâ—â— and obedience to the Lords which is â—eâ—customed to be given by Advocats at their entrie And We are graciously pleased that you proceed no further against those who gave in these late appealls nor â—gaâ—st these Advocats who refused to give their Oaths concerning their accession thereto providing these Advocats do somâ—nly disown these appealls and all other appealls and Protestations which may any way import a Charging of the Sentences of the Lords or their Inâ—eâ— locutors with un-justice and in case they refuse to disown the same We peremptorlie command you to debar them from the Exâ—rcâ—se of any part of their Function as Advocats in time coming And We do Authorizeâ— and strickly Command you to declare any membeâ— of the Colledge of Iustice or others who depend thereupon who shall not give obâ—dâ—ence in the particulars above-mentioned incapable to exerce any Office in or depending upon the Colledge of Iustice and for the better discovering cont ivances you are to receive no Supplications but such as are signed by an Advocat As also you are hereby required if need bees to put all who depend upon the Colledge of â—ustice to give their Oaths as Parties or Witnesses for dâ—scovering the contrivances and in case any other having no dependence upon the Colledge of justice shall present any thing Expressing or Importing the chaâ—ging of any of your Sentences with Injustice in the Terms foresaid or any other way We do Authâ—rize and Command you that you do immediately secure their Persâ—ns if they be presâ—nt and if they be absent that you isue forth Charges and all other Execution against them for that effect And that you give an accompt thereof to Usâ— That We may signifie Our further pleasure therein For doing of all which this shall be your sufficient warrand And so We bid you heartily Farewell Given at Our Court at Whitehall the 10 May 1674. And of Our Reign the 26. year Sic Subscriâ—itur By His Majesties Command LAUDERDAIL Iuly 23. 1674. ACT concerning Acts before answer THE Lords considering That in several Cases they are in use before discussing of the Relevancy of the points debated to ordain the Parties Pursuer or Defender or either of them to produce Writs or to prove certain Points of fact that they may have the whole matter intirely before them both as to the Relevancy and Probation whereupon Acts are Extracted Which are called Acts before Answer And in reguard Questions do and may arise concerning the import and effect of such Acts if the Parties be thereby so concluded as they may not thereafter propon new alledgances and what Terms and Dyets should be allowed for Probation and seing it will be a great prejudice to the Leiges if after Acts Extracted and Probation led thereupon Parties or their Pocurators should be permitted to to offer new alledgances not formerly insisted on in the Act for Probation whereof new Terms behoved to be asigned and thereby Processes would be drawn to a great length Therefore the saids Lords do ordain the Parties Procurators to propone all their alledgances in the Cause before or at the time of pronouncing these Acts before Answer And declare that after these Acts are Extracted they shall not be heard to propone any new alledgances which were competent but omitted to be proponed when the Act was pronounced And the Lords declare That where the Parties Pursuer or Defender are before answer to the relevancy burdened with the Probation of any point they shall have the same Terms or Dyets for Probation thereof as by the constant practice is allowed to Pursuers for proving their Lybells when the same are admitted to their Probation but if in the same Acts any point be found relevant and admitted to Probation that the Parties Pursuer or Defender to whose Probation the same is admitted shall have the same Dyets for proving thereof as are allowed to them respectivè in Acts of litis contestation But after the Probation upon the saids Acts is closed they shall not be admitted to adduce any other probation of any points formerly alledged in the Act. And further the Lords declare that where any Alledgance or Reply is founded upon Writs and that before Answer there to the Writs are ordained to be produced in case the Party burthened with the producing of these Writs shall fail therein and thereupon the Term shall be circumduced against him that the alledgance or reply in the Case foresaid shall be holden as not proponed ACT for tryall of those presented to be Ordinary Lords of Session Iuly Last 1674. THE Lords considering That the KING' 's Majestie by His Letter May 19. last did require them to present to His Majesty what Tryal they should think best and firest to be taken for Cognoscing the Qualifications and sufficiency of such Persons as His Majesty shall hereafter Nominat to supply any Vacant place in the Session and the saids Lords in answer thereunto having offered their humble opinions That thereafter when any new Lords of Session shall be presented by His Majesty for tryal of their Qualifications they shall sit three days beside the ordinary in the Utter-house and shall have inspection of the said Processes which shall be carried to Interlocutor and shall make report of the Points taken to the Interlocutor in presence of the whole Lords As also for compleating their Tryal they shall sit on day in the Inner-house and after any Dispute is brought to a Period and the Lords are to advise the same in order to the pronouncing their Interlocutor they shall resume the Dispute and first give their opinion there anent in presence of the whole Lords Likeas His Majesty by His Letter of the 14. of this instant having approven the foresaid Rule offered for the Tryal of such as shall be presented by His Majestie as ordinary Lords of Session and appointed it to be entred in the Books of Sederunt for that purpose The said Lords in obedience to His Majesties commands do ordain the same to be observed as the constant Rule in all time coming for Tryal of such Persons as shall be presented by His Majesty to be ordinary Lords of the Session And ordain these presents to be Recorded in the Books of Sederunt Ianuary 26. 1675. THIS day compeared Personally George Marqueâ—s of Huntly in presence of the Lords and declared that he having given Commission to divers of his Friends for managing his affairs during his absence forth of the Countrey who as he was informed had given in an Appeal in an Action pursued in his Lordships name against Gordon of Carnborrow and craved that in regard he doth passe from the said Appeall that warrant might be given to deliver up the same to him
Which desire the Lords granted ACT concerning Prisoners for Debt February 5. 1675. THere being an Address made to the Lords of Council and Session by the Keeper of the Tolbooth of Edinburgh representing That Persons imprisoned in the said Tolbooth for Debt upon Captions having obtained discharge of the Debt are pressing to be liberat upon production of the discharge without a Charge to set at Liberty which he refuses to do alâ—â—it the same be usually done by the Keepers of other Tolbooths And particularly by the Jailor of the Tolbooth of the Canongate and therefore dâ—siring that the Lords would allow him the same priviledge which is assumed by the Jailor of the Tolbooth of the Canongate or otherways to determine what both of them ought to do herein And the saids Lords having taken the general Case to their consideration and finding that where the Debt for which Persons are Incarcerat is in-considerable the Expenses of procuring â— Charge to set at Liberty will sometimes near equal the Debt it self the Prisoners being also poor and not able to satisfie the saids Expenses Therefore the saids Lords do Authorize and allow the Magistrates of Burghs to set at Liberty out of their Tolbooths Persons imprisoned for Debt by vertue of Letters of Caption upon production of a sufficient discharge of the Debt granted by the Creditor at whose instance they are incarcerat bearing a Consent to the Debitors Liberation and duly registrat if the sum do not exceed two hundred merks Scots and the Prisoner be not arrested at the Instance of other Parties the Magistrats or Keeper of the Tolbooth being always careful to keep an Extract of the said discharge and finds no necessity in this Case of a Charge to set at Liberty But if the sum for which the Debitor is Incarcerat exceed two hundred merks Scots the Lords discharge the Magistrats of the Burgh to Liberat him out of Prison without a Suspension and Charge to set at liberty under His Majesties Signet February 9. 1675. ACT anent Bills of Suspension THE Lords finding it expedient That some setled Rule and Order be set down concerning the presenting and passing of Bills of Suspension That any abuses which of late have creept in may be prevented in time coming do ordain that hereafter in time of Session no Bill of Suspension shall be presented to any Lord to be past but to him who shall be ordinary Lord for the time upon the Bills and that both in time of Session and Vacancy the Ordinary shall continue upon the Bills from Tuesday to Tuesday in the inseuing week And ordain the Bills to be presented only by the Clerk of the Bills or his Servant and when the Bill of Suspension shall be presented if the Ordinary after the perusal thereof find the Reasons relevant and sufficiently instructed that he passe the Bill And in case application shall be made to him by the other Partie concerned for a hearing the Ordinary shall Writ towards the foot of the Bill that before the Bill of Suspension be expede and go to the Signet the other Partie shall see and answer and in that Case he may stop execution for sometime not exceeding a moneth from the time of presenting the Bill And if the Ordinary shall reâ—use the Bill of Suspension he shall mark upon the back of the Bill with his own hand that the Bill is refused in respect the Reasons are either not relevant or not instructed which Bill the Clerk is thereby ordered to keep and mark with his hand upon the back thereof what Writs are produced for instructing the Bill And if the same Bill or any new Bill of Suspension upon that matter shall be desired to be presented to another Lord being Ordinary for the time the Clerk shall present to the Ordinary the Bill of Suspension which was formely refused In which Case the Ordinary is not to passe the Bill untill it be presented to the whole Lords in time of Session or to three Lords met together in time of Vacancy ACT ordaining Processes after Avisandum to be carried to the Ordinary that same day and reported in his Week Iune 2. 1675 THE Lords considering the inconveniences arising from the giving up of Processes to Parties or their Advocats after the same are taken to Interlocutor the reporting of Causes being thereby much delayed and it being contrary to the ancient Custom Therefore the saids Lords ordain that in time coming after any Cause is dispute before the Ordinary in the Utter-house and an Avisandum made therein to the Lords that the Process shal that same day be carried by the Clerk or his Servants to the Ordinary that he may peruse the same and that he may endeavour to report to the Lords the points taken to Interlocutor the next day thereafter or at fardest once in his Week And the Lords discharge either the Ordinary or the Clerk to give up or lend out to the Parties or any Person for them the Processes or any part thereof after an Avisandum is made therein to the Lords or when the Ordinary shall call for the Process to consider it himself And if any Act or Decreet pronounced by the Ordinary shal be stopped upon the desire of any of the Parties for a new hearing that the Lord who formerly hard the Cause shall go to the Bench in the Utter-house betwixt 8. and 9. a clock in the morning before the ordinary come out and call and hear the Parties Procurators wherein the Lord was Ordinary the immediat preceeding Week shall have the preference before any other Lord who was Ordinary in any of the former Weeks Likeas the Lords discharge any writen Dispute upon Bills of Suspensions or Advocation but where the Ordinary upon the Bills shall think fit to allow a Bill to be seen that he call the Parties the next day and hear what they have to say viva voce without taking in written answers Hugh Riddel sent to the Plaâ—tations Iuly 20. 1675. THE which day anent the Petition given in to the Lords by Iohn Riddel Merchant in Edinburgh shewing that Heugh Riddel the Petitioners only Brother having committed an unexcusable Crime Whereat the Supplicant blushes in cutting some Silver-buttons off a Gentle-mans Cloaths in the Utter-house during the time that the Lords were sitting and being therefore committed to Prison the saids Lords have most justly ordered him this day to be brought by the publick Executioner from Prison to the great door of the Session House at 9. a clock in the forenoon and to stand till 10. a clock with a Paper on his Fore-head expresing the Crime whereof he is guilty and thereafter to be taken by the foresaid Executioner to the Trone and there to stand with that Paper on his forehead from ten to eleven a Clock Which Sentence the Supplicant acknowledgeth to be less then the said Hugh Riddel deserveth only he being a young man and related to honest Parents and the Supplicants Brother and never known to
have been addicted to any such base Acts formerly albeit the Petitioner and his Friends are ashamed in his behalf to plead any exemption from his deserved punishment which his riper years may cause him detest and abhore as an offence to the saids Lords and Scandal to his Friends and prejudice to the Party offended which the said Party offended willingly forgiveth out of respect to his Friends Therefore humbly desiring that the saids Lords for preventing such a publick Stain upon the Petitioner and his Friends by the said publick disgrace upon a youth of his years would be pleased to 〈◊〉 his Sentence as to the way and manner of the disgrace and infamy by 〈◊〉 his Imprisonment upon the Supplicants Charges till there be an occasion for Transporting of him beyond Seas or where the saids Lords shall judge convenient whether by way of banishment or otherwise during then Pleasure for which effect the Supplicant shall be obliged by Bond if the Loâ—ds shall require the same and in the mean time to be favourably pleasâ—d to discharge the Execution of the said Sentence Which Supplication being considered by the sâ—ids Lords they by their deliverance thereupon of the 16. of thus Instant granted Warrant to the Magistrates of Edinburgh to continue the execution of their Sentence pronounced against the said Hugh Riddel until VVednesday the 21. of this Moneth betwixt and which time if he should find sufficient Caution to contiâ—â—e in Prison upon his own Charges until an occasion shall offer for his Transportation to his Majesties Plantations in America and that he shall then remove to the saids Plantations and not return to this Kingdom under the pain of five thousand merks Scots Money to be disposed of as the saids Lords shall think fit in case he contraveen In that case the Lords declare they will dispense with the execution of their former Sentence and if Caution were not found to the effect foresaid betwixt and the said day they ordained the formerâ— Sentence to be then put in execution Likeas this day the Lords having considered a Bond of Cautionry produced subscribed by the said Iohn Riddel dated the 19. day of this Instant and finding the same to be conform to their foresaid deliverance therefore they have dispensed and hereby dispense with the execution of their former Sentence pronounced against the said Hugh Riddel upon the 15. Instant and grants Warrant to the Magistrates of Edinburgh to deliver the Person of the said Hugh to the said Iohn Riddel when he shall desire him in order to his Transportation ACT anent passing of Bills for liberty out of Prison Iuly 21. 1675. THE Lords considering that oftentimes where Parties have done ultimate diligence against their Debitors by apprehending them with Caption and Incarcerating them Bills of Suspension and Charges to set at liberty are presented and past in favours of these Persons without the knowledge of the Creditors at whose Instance they are Incarcerat and to their great prejudice thereby frustrating the diligence done by them For remeid whereof the Lords ordain That in time coming when any Person intends to give in a Bill of Suspension and Charge to set at liberty that he shall make previous Intimation of the same to his Creditor at whose Instance he is Incarcerat or arrested in Prison Personally or at their dwelling place by a Nottar before Witnesses mentioning the time when the Bill shall be presented in case the Creditors be within the Kingdom for the time and that the Instrument of Intimation to the Creditors under the Nottars hand be produced with the Bill of Suspension and Charge to set at liberty when the same is presented to the Ordinary upon the Bills otherwayes that the Bill be not past And the Lords ordain the Intimation to be special in the time when the Bill shall be presented being within the latitude of a Week that the Creditors may be at a certainty when to attend the same ACT concerning the granting of Protections February 1. 1676. THE Lords considering that divers Persons who are under the hazard of Caption for Debt pretending that they are cited to bear Witnesse in Processes depending before the Lords do upon production of a Charge given to them for that effect under Messengers hands procure Warrants from the Lords to Discharge the execution of Letters of Caption and Acts of Warding against them for some time albeit they be not made use of as Witnesses but only the said Charge impetrat by them from a Messenger that they may obtain the foresaid Warrant For remeid of which abuse the Lords declare that in time coming they will grant no Warrant for stopping of execution of Letters of Caption or Acts of Warding upon that ground that the Craver thereof is cited as a Witness in a Process unless with the Petition there be given in a Declaration under the hand of the Party Pursuer or Defender who adduces the Witnesses bearing that the Person who desires the said Warrand is really cited at his instance as a VVitness and that he is a necessary VVitness And the Lords declare they will fine the Party who gave the said Declaration if at the conclusion of the Cause it appear that there was Collusion in giving the same it being only done that the said Person might obtain a Personal Protection His Majesties Letter concerning the Clerks Iune 20. 1676. CHARLES R. RIGHT Trusty and well beloved Cousins and Counsellers Right Trusty and well beloved Counsellers and Trusty and well beloved We Greet you well We have often evidenced Our Affection to and Care of you the Senators of Our Colledge of Iustice and as VVe have Trusted you with the Distribution of Iustice and the preservation of the Rights and Properties of Our Subjects in that Kingdom according to Law and are very confident of your equal and expedite procedor in Iustice to all Our Subjects which is the most acceptable Service you can perform to Vs So VVe will suffer none of Our Subjects to reproach your Procedor much lesse these who serve before you and by your Favour and VVarrand have the priviledge to procure and plead for others who if they should be permitted to defame your Sentences might prove the unhappy Instruments to lessen the Honour and Confidence which hath been alwayes attributed to that Senate by Natives and Strangers and might diffuse the Leaven of Male-contents amongst Our People as if their Rights and Interests were not securely lodged and thereby make them more capable of evil Impressions and desirous of change And We do Require you by all means to suppresse and prevent all mutinous Courses which you have prudently adverted to and obviat by your Act of Sederunt of the 5th of January last wherewith We are very well satisfied And We do leave the Advocats and others of the Colledge of Justice to be Ordered by you in all things relating to their Imployments And We do further Require you to prevent and punish all Conbinations and
unwarrantable Correspondences amongst Advocates whereby they may forbear or refuse to Consult Plead or concur with these who did so faithfully adhere to Our Service and did continue in or early return to their Station and as further Evidences of Our Royal Favour We do Ordain That the three Clerks of Session who do expede your Decreets shall be nominate by the Senators of Our Coledge of Iustice in all time coming and that they be subject to their Sensare and that the Clerk of Register give them Deputations from time to time and in case of Vaiking of the Clerk of Registers Offâ—â—â— We do Authorize the saids Clerks of Session to Act by your Warrand as they shall be Ordered by you without prejudice to the Clerk of Register of all other Benefite and Emolument belonging â—o or depending upon that Office And it is Our further Pleasure that in all time coming there be only three ordinarie Clerks of Session besides the Clerk of the Bills according to the ancient Constitution and that of the number that now serve you make choice of three that shall still serve and that you modifie such Satisfaction to be payed by those that remain to those that are to go out as you shall find just and reasonable and so We bid you Farewel Given at Our Court at Whitehall the twenty fourth day of May One thousand six hundred seventy and six And of Our Reign the twenty eight year Subscribed thus by His Majesties Command LAUDERDAIL ACT concerning the Registers Iuly 4. 1676. THE Lords having considered His Majesties Letter direct to them bearing that whereas by His Majesties advancing Sir Archibald Primerose of Caringtoun late Clerk Register to the Office of Iustice-General the Office of Clerk Register is now Vacant and seing His Majesty hath thought it necessar for the advantage of His Service and for the good of His Subjects that the hail publick Records of this Kingdom which are and were in the Possession and Custody of the late Clerk Register or his Deputs and Servants be put and keeped in good Order Therefore His Majesty impowers and authorizes the saids Lords to take special care and see that the same be effectually done and to that effect that they appoint some of their number to take inspection thereof and by themselves and such as they shall imploy under them to put and continue them in good Order And His Majesty authorizes the saids Lords and those of their number appointed by them to receive the hail publick Registers and Records from the late Clerk Register upon such account and Inventar as they should find just safe and secure and which being effectually gone about and done that they render to His Majesty or to His Secretary for His Majesties perusal a full and exact account of their diligence therein to the end His Majesty may thereafter declare His further Pleasure and for effectuating hereof that the Lords in His Majestie 's Name and by His Authority Require the late Clerk Register and his Deputs and Servants to exhibite and produce the saids hail Records to them or those appointed by them immediatly after receipt of His Majesties Letter The saids Lords in pursuance of His Majestie 's Command do nominat and appoint the Lords Thesaurer Depute Collingtoun Reidfoord and Newtoun or any two of them to meet at such times as they shall think convenient and to take inspection of the hail publick Records of the Kingdom which are or were in the Possession and Custody of the Lord Caringtoun late Clerk Register or his Deputs and Servants and by themselves or such as they shall imploy under them to put and continue the same in good Order and authorize the Lords above-named to receive the saids hail publick Records from the Lord Caringtoun upon sufficient Account and Inventar and to that effect the Lords in His Majesties Name and by His Authority do Require the Lord Caringtoun and his Deputs and Servants to exhibite and produce the saids hail publick Records to the Lords above-named or any two of them whem they shall desire the same and allows the said Lord Caringtoun or any Person whom he shall authorize to be present at the Inventaring of the saids Registers to the end obedience may be given to His Majestie 's Letter in all points ACT for Inventaring the Registers Books Iuly 13. 1676. THE which day the Lord Thesaurer Depute Collingtoun Reidfoord and Newtoun made report to the Lords that conform to the Warrand given to them they had met with the Lord Caringtoun late Clerk Register and had delivered to him the Ordinance past by the Lords upon His Majestie 's Letters concerning the Registers and had taken a view of the hail Records in his Custody in the Parliament-House and in the Castle of Edinburgh and that the Lord Caringtoun declaredâ— he would deliver the same either upon Inventar or in bulk without Inventary upon oath that he has Abstracted none of them as the Lords should think fit to order he being exonered of the saids Registers but they found the Warrans to be so many and not in order that it would take a long time to Inventar them which report being considered by the Lords they in pursuance of His Majesties Commands do ordain the whole Register Books which are in the said Lord Caringtoun's Custody to be presently Inventared by Iohn Anderson Writer in Edinburgh and any others who shall be appointed by the Lords above-named who shall give their oaths that they shall faithfully discharge this Trust according to such Directions as they shall receive from these appointed by the Lords and ordain the Inventary to bear What each Book contains in general at what time itâ— begins and when the same ends and if there be any blanks in the Books that the same be marked in the Inventary And ordains the said Lord Caringtoun to give the said Iohn Anderson or any others to be appointed by the saids Lords access to the saids Registers to the effect foresaid and allows him or any he shall appoint to be present at the said Inventaring and after the said Inventar shall be made the Lords do impower those of their number above-named or any two of them to to take the oath of the Lord Caringtoun if he hath any more Register Books Records or Warrants then are in the Rooms in the Parliament-House and Castle of Edinburgh whereof he is to deliver the Keys and if he abstracted or embazeled any of them or if they be all intire as he received them or as they came at any time thereafter to his hands And likewise ordain any of his Servants intrusted with the keeping of the saids Registers to be examined upon oath thereanent and thereafter ordain the Lord Caringtoun to deliver the Keys of the Rooms or Presses where the saids Registers and Warrands are to these of their number appointed to receive the samine Which Inventary being made and the Lord Caringtoun giving his oath and delivering the Keysâ— as
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
same Station and jointly Consult their Clients Causes which being contrair to the Custom always formerly observed and very inconvenient and prejudicial to the Leidges who are thereby put to Consult their Advocats severally and have not the benefit of their joint Advice as to the matter and manner of carrying on their Causes whereof the Lords have seen instances in their own presence by some Advocats their difiering and disclaiming the alleadgences proponed by others for the same Party For remeid whereof the Lords declare that if any Advocat in time coming upon the account of Personal prejudice or any other pretence shall reâ—use or forbear to Consult or Concur in the capacity of an Advocat with any others whom the Lords do or shall authorize to be Advocats that they shall be removed from their Imployments ACT concerning the sisting of Execution upon Bills of Suspension Iuly 3. 1677. THE which day the Lords considering that sometimes after Bills of Suspension are past the same are not exped at the Signet through the Parties fault in not finding Caution or other neglect and that Bills of Suspension are frequently by Deliverance of the Orpinary appointed to be seen by the Charger or his Procurators and in the mean time Execution stopped at the Chargers Instance indefinitly not limiting the same to a certain day And seeing some Question may arise if in these Cases Execution should be sisted and during what time For clearing whereof the Lords declare that where a Bill of Suspension is past and intimat or shown to the Charger or to the Messenger the time of the Execution but not expede at the Signet That Execution is only to sist for the space of fourteen dayes after the Date of the Deliverance passing the Bill unless the Ordinary upon further consideration by a Signature upon the Bill Subscribed by him discharge the expeding of the Bill untill a further day or allow the Suspender a longer time for expeding thereof providing the same exceed not a Month from the Date of the Deliverance of the Bill passing the same After elaâ—sing whereof of the Lords declare that the Charger may proceed to further Execution notwithstanding of the foresaid past Bill And if the Ordinary express no day but stop Execution indefinitly The Lords declare that the stop shall continue only for the space of fourteen dayes from the Date of the Deliverance as aforesaid but prejudice alwayes of Deliverances given by the Lords in presentia upon Petitions ordaining the Reasons of Suspension to be Discust summarly upon the Bill and in the mean time discharging execution In which case Execution is to sist untill the Cause be Discust or the Stop be taken off by the Lords And the saids Lords prohibite the Clerk of the Bills to write any Date upon the Deliverance of a Bill of Suspension but in presence of the Ordinary and that it be the true Date wherein the same is Subscribed ACT concerning the Suspensions of Protestations Iuly 10. 1677. THE Lords considering that the Act of Parliament doth appoint that where a Protestation is Suspended the Deliverance of the Bill should mention that it is the second Suspension and so forth of all the Suspensions obtained thereafter that the same is the third or fourth Suspension Yet notwithstanding by the Fault or Inadvertency of the Clerk of the Bills the same is not observed Therefore the Lords declare that where there is a Suspension past of a Protestation if the Deliverance of the Bill do not bear that the same is the second Suspension and so forth of any subsequent Suspensions that they will recal the Suspension albeit the same be exped at the Signet as being contrair to the Act of Parliament ACT against Sollicitations November 6. 1677. THE Lords taking to their serious consideration that by several Acts of Sederunt The Lords have formerly prohibited all Sollicitations in Causes depending before them whereby Parties did endeavour and expect favour by the Credit and Moyon of themselves or their friends interposing with the Lords and Personal respects not relating to the Cause to the great discouragement of others who had not the like friendship or moyon and to the great trouble of all conceiving it their interest and that it might be looked on as a slight or neglect if they did not upon all occasions by themselves or their friends Sollicit the whole Lords at their Houses lying scattered through the several places of the City imagining thereby to have much promoted their interest and payed respect to the Lords who have no regard to but are troubled with such Sollicitations it being their duty and design to do Justice to all impartially without respect of Persons Notwithstanding of which Acts and endeavours of the Lords against Sollicitations the same have been revived upon pretence of giving Information in the Cause but now seing written Informations are become ordinary and that all that ought to be represented to the Lords in any Case may easily without trouble be done by written Informations sent to the Lords by a servant which they will heartily accept and will not fail to peruse and finding it unfeasible to hinder Sollicitations so long as they admit of Verbal Information Therefore the Lords do declare that they will admit of no Sollicitation or Verbal Information in any Cause depending or that shall depend before them during the Dependence thereof either by the Parties themselves or by any other Person And to the end the same may be effectual against all importunity The saids Lords do Enact and Declare That it shall be a relevant Reason of Declinator against any of the saids Lords Ordinary or Extraordinary that they have received or heard any Sollicitation or Verbal Information in the Cause during the Dependence thereof But upon the first observing that the matter offered to be spoken to them did bear or import any Sollicitation or Verbal Information in a Cause depending if they did not use all the means they could to stop or withdraw to hear any further thereof Or in case any Sollicitation or Information in a Cause depending be offered by a Missive-letter if they do not present the same to the Lords Likeas the saids Lords do strictly Prohibite all Advocats Clerks Writers and others depending upon the Colledge of Justice or their Servants to offer to any of the Lords any Sollicitation or Information by Word or Letter but only by Written Informations Bills or Tickets for calling under the pain of Deprivation and being secluded from the House excepting the Clerk of the Process for clearing any Interlocutor or Minute in the Cause Likeas the saids Lords do declare That if any Party or others of the Leidges offer any Sollicitation or Information by Word or Missive that they will Ammerciat them as follows viz. Every Nobleman in three hundred merks Scots Money Every Baron or Knight in two hundred merks Every other Heretor Gentleman or Chief Burgesse in one hundred Pounds And every other Person in one
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
the general Registers of Hornings and Inhibitions and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time and found that during the said time there were no Hornings Booked for the space of five years and three moneths or thereby and that no Inhibition were Booked for the space of three years and six moneths and that they had called the Persons who were intrusted in that time as Clerks to and Keepers of the saids Registers of Hornings and Inhibitions and where they were dead they called and heard their Representatives but that one of these who had the Keeping of the saids Registers from the 5. of Iune 1652. to the 8. of September 1654. Called Thomas Freeman being deceased there can be none found to represent him which being taken in consideration by the Lords they Ordain the Hornings and Inhibitions to be Booked for the saids years by such Persons as the Lord Register shall appoint and allows them for their pains three shillings four pennies for ilk Leaf of the Book Written in such manner as the Lord Register shall appoint And the Lords Ordain the same to be payed by the Persons who enjoyed and possest the said Offices and were oblieged to have Booked the same or their Representatives And where they have none to Represent them by the Person who succeeded next in the said Office and his Representatives And Ordain Letters of Horning to be direct upon six dayes to the effect foresaid Orders for payment of the Dues of the Signet where Suspensions are appointed to be discussed upon the Bill Ianuary 24. 1679. THE Lords considering that they do frequently grant Warrands to the Ordinary upon the Bills to Discuss the Reasons of Suspension upon the Bill especially where the Charger desires the same And seeing that Warrand or Deliverance hath the effect of a Suspension past the Signet the Party ingiver of the Bill of Suspension being thereby secured against any further Personal Execution untill the Reasons of Suspension be Discussed It is just and reasonable in this Case that the Dues payable for affixing the Signet should be satisfied as if the Suspension had been past and exped Therefore the saids Lords do Ordain that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills in order to the Discussing thereof there be payed in to the Clerk of the Bills or his Servant in that Office the Dues payable for affixing the Signet to the Suspension for which they are to be comptable to the Keeper of the Signet under the Lord Secretary and to make payment thereof as he shall call for the same And appoint the Clerk of the Bills and his Servants to keep a Note of such Bills of Suspension whereof the Reasons are ordained to be be Discussed on the Bills to the effect foresaid ACT in Favours of Intrant Advocats February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn Son to Mr. Alexander Nairn of Greenyards mentioning That the Petitioner upon a Reference of the Lords to the Dean of Faculty and the Advocats Examinators for taking Tryal of his Qualifications in order to his Admission to the Office of an Advocat having undergone both the privat and publick Tryal and Examination and thereafter applyed to the Dean of Faculty to assign him the Subject of his publick Lesson before the Lords the same is refused until the Petitioner make payment to the Advocats Box of 500. merks Scots conform to a late Act of the Faculty made to that purpose And the Lords considering that the Office and Imployment of Advocats being a liberal profession albeit they will not allow any sums of money to be imposed upon young men at their Entry to the Office and Station of Advocats yet they recommend to them to Contribute Voluntarly for a Library to be erected for the use of the Colledge of Justice ACT anent Executors Creditors November 14. 1679. THE Lords considering that it is imcumbent to all Executors by vertue of their Office to execute the Testament of the Defunctâ— by recovering his Goods and payment of the Debts owing to him for the behove and interest of the Relict Children or nearest of Kin Creditors and Legatars of the Defunct Therefore the saids Lords do Declare that Executors decerned and Confirmed as Creditors to the Defunct are holden as lyable to do Diligence for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament or â—iked sicklike as other Executors Dative are holden to do by the Law and practick of this Kingdom And to the effect that Creditors be not unnecessarly intangled in the Execution of Defuncts Debts beyond their own satisfaction The Lords Declare that Executors Creditors shall not be oblieged to make a total Confirmation but only of so much as they shall think fit that there may be place for an Executor ad ommissa for the rest who shall be lyable to all Parties having Interest in the same way as principal Executors It is also Declared that Executors Creditors shall have license to pursue if they will make Faith that they are doubtful of the Validity Existence or Probation of the Debts of the Defunct for which they desire license the same being returned to the Commissars within such competent time as they shall appoint and upon Caution to Confirm as hath been granted in the Case of Licenses formerly ACT anent the Registration of Hornings November 19. 1679. FOrasmuch as all Letters of Horning are to be Registrate either in the Registers of the Shire where the Denounced Person dwells or in the general Register of Hornings keeped at Edinburgh and the Sheriffs Clerks and Keepers of these Registers in the Shires are by special Act of Parliament appointed to bring in those Registers to be marked by the Clerk of Register and when they mark the Registration of any Horning upon the Letters they should also insert therein the number of the leaves of the Register wherein the same is Registrate Which Order is renewed by Act of Regulation in Anno 1672. And the due observance hereof being of great Importance for the Benefite and Security of the Leidges Therefore the Lords do accordingly Ordain all Sheriff Clerks to bring in their Registers of Horning to be marked by the Clerk of Register and that in every Horning to be Registrate by them they insert at the marking thereof the particular leaf of the Register wherein they are Registrate and that the Sheriffâ— Clerk take in no Hornings to be Registrate in their Books but against Persons dwelling within their Shire And the Lords recommend to the Lord Register to take special care of the exact observance hereof And also Ordain the Clerk of the Bills not to receive any Bill of Caption or others upon any Horning not Registrate and marked in manner foresaid And Ordain Letters of Horning to be direct hereupon upon a Charge of fifteen dayes ACT against Sollicitation
December 24. 1679. THE which day the Lords considering that notwithstanding of the Act made against Sollicitation and verbal Information dated the sixth day of November 1677. years Yet some Persons are so bold as to venture to Sollicite the Lords in their Actions And it being the Resolution of the saids Lords that so laudable and necessary an Act be made effectual Therefore they declare that in any Process now depending or which shall hereafter be intented before them when the same comes to be advised they will purge themselves concerning their receiving any Sollicitation or Verbal Information in the Cause if it shall either be desired by the Partis or moved by any of their own number And that they will delate the Persons who do Sollicite or Verbally inform them that they may be punished therefore conform to the said Act. ACT anent the taking of Renunciations from Persons Inhibited February 19. 1680. THE Lords considering That it hath been the ordinary Custom of Debitors to make payment of sums due upon Wodset or Anualrent by Infeftment and to accept Renunciations or grants of Redemption from the Wodsetter or Annualrenter albeit the Credtor had been Inhibit before payment which being made bona fide the Debitors conceived themselves secure and that they needed not search Registers to find Inhibitions against the Wodsetters or Annualrenters Which hath tended much to the detriment of Creditors seing such Sums secured by Infeftment were not arrestable For remeid whereof the saids Lords declare that if the user of an Inhibition upon search of the Registers or otherway shall find Infeftments of Annualrents or upon Wodsets in favours of their Debitor being Inhibit and shall make intimation by Instrument of an-Nottar to the Persons who have Right to the Reversion of the saids Wodsets or Annualrents that the Wodsetter or Annualrenter stands Inhibit at their instance and shall produce in presence of the Partie and Nottar the Inhibition duely Registrat Then and in that Case the Lords will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide in respect of the Intimation unless the Redemption prcceed by way of action the Inhibiter being always Cited thereto or by Suspension of double Poynding upon consignation of the sums whereupon the Annualrent or Wodset is Redeemable And ordain this Act to be Printed and afixed upon the Wall of the Utter-house that the same may be known to all the Lelges ACT against Petitions for alteration of Acts Extracted February 24. 1680. THE which day the Lords considering That some times after Acts of Litis contestation are Extracted Petitions are given in to them by one of the Parties craving the Act to be altered wherein there may be prejudice to the other Partie concerned not being present nor at that time obliged to be present conceiving himself in tuto after Extracting of the Act. For remeid whereof the Lords declares that in time coming they will receive no Bills or Supplications for alteration of Acts after the Acts are warantably Extracted seing both Parties or either of them may have a sight or Scroll of the Act before Extracting if they desire the same And likewise because sometimes Bills are given in for adducing of Witnesses which have not been contained in the first Diligence but are alleadged to have come to Knowledge since the first Diligence was taken out or after taking out of the second Diligence whereby Witnesses come to be Examined when the other Partie is not present nor obleiged to attend that they may either object against the hability of the Witnesses or propone Interrogators to them Therefore the Lords do declare that in case upon any speciallity they do give warrant to Examine any Witnesses not contained in the first and second Diligence that they will only admit the saids Witnesses to be examined at the first and second Terms of Probation when both Parties are obliedged to attend His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session Iune 8. 1680. CHARLES R. RIght Trusty and well beloved Councellours and Trusty and well beloved We Greet you well Whereas by Our Letter to you of the 24. of May 1676. We did Ordain That the three Clerks of the Session who do Expede your Decreâ—ts shall be Nominated by the Senators of Our Colledge of Iustice in all time coming And that the Clerk of Register give them Deputations from time to time without prejudice to the Clerk of Register of all other Benefit and Emolument belonging to or depending upon that Office And seing the Office of Clerk of Register was then Vacant and that the Nomination of the Clerks of Session was always Inherent in and Depending upon the office of Clerk of Register And that since We have advanced Sir Thomas Murray of Glendook one of your number to the said Place And being well satisfied with the good Service done by him to Vs in the late Convention of Estates and upon several other occasions Therefore as a Mark of our Royal favour to him We do by these presents Recall our said Letter anent the Nomination of the Clerks of Session and do Impower Authorize and Appoint the the said Sir Thomas Murray during his enjoyment of the said Office of our Clerk of Register Solely to nominate and appoint the Clerks of Session So that upon Death Demission and Vacancy of any of the Clerks of Session the said Sir Thomas Murray is to grant Deputations to such Persons as he shall think fit and that during their Lifetime and shall as absolutely amply and freely use and exerce the said Office of Clerk of Register as any other Clerk of Register formerly did or might do declaring the same to be as Effectuall to the said Sir Thomas Murray as to his sole Nomination of the Clerks of Session as if it had been contained in his Gift of the Office of Clerk of Register And ordaining these Presents to be Recorded in your Books of Sederunt And so We bid you heartily Farewell Given at Our Court at Whitehall the twelfth day of November One thousand six hundred seventy and nine And of Our Reign the thirty one year Sic subscribitur By His Majesties Command LAUDERDAIL ACT concerning Nottars Iuly 29. 1680. THE Lords considering That by Acts of Parliament it is Statute and Ordained That Nottars be sufficiently Qualified for exercing that Office after examination by the Lords of Session that sufficient Caution be found for their due Administration of their Office and in case the Caution be not sufficient that new and better Caution be found and after the Decease of the Nottars their Protocalls are Ordained to be brought in to the Clerk of Register or his Deputs appointed by him to that effect who is impowred to Revise the Protocalls of all Nottars and consider in what Condition they are And albeit the due observance of these Acts of Parliament be a publick Concern as to the interest and
security of the whole Leiges Yet the saids Lords understanding that by reason of the late Troubles and the Confusions ensuing thereupon Especially during the time of the Usurpers these Acts have been neglected to be put in Execution In so far as many Nottars are Deceased whos 's Protocals are not returned to the Clerk of Register or his Deputes but do remain in the hands of their Relicts and Children which occasions divers inconveniencies and divers of their Protocalls are upon perusal found to be Defective and Unformal and some of their Cautioners are not sufficient Likeas divers Persons pretending to have been admitted under the Usurpers do presume to Officiat as Nottars albeit they be not lawfully Authorized so to do For redresse of which abuses and disorders The Lords do Ordain Letters to be direct at the Instance of the Clerk of Register or his Deput Clerk to the admission of Nottars for charging the Relict and Executors of such Persons as are Deceaâ—ed and their Cautioners to bring in and deliver to them the Protocall Books of the saids Nottars conform to the Act of Parliament and their Respective Acts of Admission And also Ordains General Letters to be Direct at the Instance of the Clerk of Register or his said Deput for charging such Nottars as they are informed to have Protocalls Detective or Informal to produce their Protocalls before the said Deput at the head Burgh of the Shire where the Nottar does Reside and where the Cautioners found for any Nottar is insufficient to charge that Nottar to find new and more sufficient Caution And Ordain these General Letters to be Execute upon six days and that against such Particular Persons only as shall be given in a List under the hand of the Clerk of Register And the saids Lords do hereby prohibit and discharge all Persons who were admitted Nottars under the Usurpers to Officiat as Nottars untill they be of new admitted And the saids Lords considering that it is Statute and Ordained by Acts of Parliament and specially by the 78. Act Parliament 5. Iames 5. That all Sheriffs Stuarts Bailzies and others both to Bâ—rgh and Land shall present their Clerks in presence of the Lords of Session to be Examined Sworn and admitted by them and seing the Clerks of these Courts have neglected for some time by past â—o compear before the saids Lords to be tryed and approven by them and it being necessary and the publick Interest of the Leidges that these Acts of Parliament be punctually observed in time coming Therefore the saids Lords do ordain and require all persons who hereafter shall be nominate Sheriff Clerks Clerks of Sâ—ewartries and Bailiries before they enter to and exerce their Office of Clerkship to compear before the saids Lords that they may be tryed and approven by them conform to the Act of Parliament Certifying them if they failzie therein they shall be deprived of their Offices ACT concerning Bills of Suspension November 9. 1630. THE Lords considering that by former Acts of Sederunt of the 9. of February 1675. and the 3. of Iuly 1677 They did give Warrant to the Ordinary upon the Bills to allow a sight of a Bill of Suspension to the Charger and to stop Execution for some time not exceeding a Moneth declaring also that a Bill of Suspension signed by the Ordinary though not expeded at the Signet should import a stop of Execution for the space of fourteen dayes from the date it was signed that in the mean time sufficient Caution might be found and that the Clerk of the Bills might enquire anent the condition of the Cautioner And now finding that abuses have crept in stops being procured from several Ordinaries from time to time and that when the first fourteen dayes after a signed Bill were elapsed a new one was presented and past which stopped Execution for other fourteen dayes and so might continue for a long time Therefore the Lords do declare that they will give no stops of Execution hereafter upon Bills of Suspension fourteen dayes from the date being a sufficient time both for seeing and expeding the Bill And Declares all other stops to be void except where Causes are ordained by the Lords to be Discust upon Bills and ordains the Clerk of the Bills to make a Minut-book both of past and refused Bills by the Alphabetick Order of the Parties sirnames which he is to make patent to any Charger that shall desire to see the same gratis and discharges him to present any new Bills in that Cause except to the whole Lords in time of Session or to three Lords in time of Vacance as he will be answerable at his peril and because Parties or their Procurators are accustomed to procure Suspensions upon pretence that the Copy of the Charge given by the Messenger is general or unformal and for verrifying thereof do produce forged Copies and sometime forged Writes for instructing Reasons of Suspension founded thereupon never intending to make use of the same and therefore do suffer Protestations to pass For remeid whereof the Lords do declare that if the Charger shall produce such a Suspension or a duplicat thereof under the hand of the Keeper of the Signet that in that case the Lords besides the ordinary expenses of Protestation will modifie large Expenses to the Charger for his delay and in case Protestation shall not be admitted but the Suspension shal come to be Discust and at the Discussing the Charge or other Writes mentioned in the Reason of Suspension be not produced The Lords Declares they will hold these Writes false and sorged and modifie large Expenses to the Charger but prâ—judice to insist against the forger of the saids Copies or Writes and ordain a Copy of this Act and of the other two Acts above-mentioned to be affixed upon the Wall of the Outter-House and Copies thereof to be delivered to the Clerk of the Bills to remain affixed on the Wall of the Bill-Chamber that he may exactly observe the same ACT anent the marking of Advocats Compearance for Defenders November 25. 1680. THE Lords declares that in time coming where several Defenders are conveened in one Summonds and that at the calling thereof by the Clerk an Advocat shall be marked compearing indefinitly for the Defenders and who shall likewise return the Process that Advocat shall be holden compearing for all the Defenders unless by the return upon the Process he qualifie his Compearance and express for which of the Defenders he compears and for which of them he doth not compear ACT in favours of the Macers February 15. 1681. THE which day there being a Petition given in to the Lords by their four ordinary Macers representing that where the Lords are in use upon application of Parties to grant Commissions for taking the Oaths of Parties and the Depositions of Witnesses in Causes where it appears by Testificats produced that the Parties or Witnesses are through age and infirmity unable to travel And sometimes Commissions
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
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
is special enough bearing the Ware of the Shop to be Silks Stuffs and others worth 4000. merks and the Confirmation alone Constitutes the Property unto the Executor because he is Haeres mobiliâ—m and the Property being before in hereditatae jacentâ— ipso facto by the Confirmation it is Established in the Executor Secondly by the constant practice of this Kingdom there could no second principal Confirmation but only ad oâ—issa and she could never Confirm that which the first Executor had Confirmed The Defender answered that by Act of Sederunt of the Judges in the Usurpers time all Executors Confirming within six Moneths after the Defuncts Death were ordained to come in together and therefore it was then the Custom that all Confirmed principally the same things seeing they could get no more then what was in their Confirmation And the Defenders Confirmation being at that time must be sustained The Pursuer answered that the Defender cannot have the benefit of that Act of Sederunt because she Confirmed not within six Moneths after the Defuncts Death The Defender answered she Confirmed within six Moneths or six or seven Dayes more which is an inconsiderable difference The Lords preferred the first Executor to the Goods in the Shop Mr. Iohn Veach contra Byel of Bassinden Eodem die MR. Iohn Veach as Assigney by Iohn Edgar of Wedderlie to a Reversion pursues Declarator against Byel of Bassinden the Wodsetter who alleadged Absolvitor because the premonition is null being by a Procurator and not bearing the Procuratory produced neither the Pursuers Assignation to the Reversion The Pursuer answered non relevat unless it were alleadged that they had been demanded at that time and had not been shown Secondly If need beis he offers him to prove by the Defenders oath that the Procuratory was then shown The Defender answered the Procuratory is not yet produced and the Pursuer was oblieged to have shown it then albeit not called for The Lords sustained the Order the Pursuer reproducing the Procuratory and proving by the Defenders Oath that the Procuratory was then shown Alexander Colquhoun contra his Creditors Eodem die ALexander Colquhoun in Glasgow pursues Liberation supercessione bonorum The Defenders alleadged Absolvitor because they offer them to prove that the Pursuer did wittingly deceive them in borrowing sums and taking of Ware from them after he knew that he was insolvendo and Bankrupt The Pursuer answered nonrelevat against Liberty which is a favourable Cause and can be stopped by nothing but fraudulent Deeds since the Incarceration or offering of Aliment The Defenders craved that if the Lords inclined to grant Liberty that the Pursuer might be decerned to sit upon the Dyver-stone and wear the habit The Pursuer answered that was long since out of Custome The Lords before answer ordained the Pursuers oath to be taken upon the Defense whether he did contract these Debts after he knew himself insolvent and bankrupt and they resolved if it was so found they would not grant him Liberty without sitting upon the Dyver-stone and wearing the Habite Laird of Polwart contra Hooms Ianuary 21. 1662. THe Laird of Polwart pursues a Declarator of Redemption against Hooms who alleadge Absolvitor because the Reversion was not fulfilled which bore the sum of a 1000. merks and a Tack for 19. years after the Redemption The Pursuer answered the Alleadgence ought to be Repelled because the Lands Wodset is worth 400. merks by year and the Tack-duty is only four pounds and so it is an Usurary Paction whereby the Wodsetter will have much more then his principal sum and his Annualrent and so it is null by the common Law and by special Statute Par. 1449. cap. 19. bearing that when Wodsetters take Tacks for long time after the Bond be out quite such Tacks shall not be keeped after Redemption unless they be for the very Mail or near thereby The Defender answered First That Statute is but an Exception from the Immediat preceeding Act of parliament in favours of Tennents that their Tacks shall not be broken by singular Successors buying the Land and therefore is only understood in that case when the Wodset Lands are bought from him that hath right to the Reversion by a singular Successor but this Pursuer is Heir to the granter of the Wodset 2ly That Act is long since in desuetude 3ly Whatever the Act might operate amongst strangers yet it is clear by the Contract of Wodset produced that the Wodset was granted by the Laird of Polwart to his own Brother and so must be Repute to be his Portion Natural and the eldest Brother might well grant a nineteen years Tack to his youngest Brother albeit there had been no Wodset Likeas in the Wodset there is Reserved the Liferent of a third Partie who lived thirty six Years thereafter during which time the Wodset got no Rent The Lords found the Defense and Reply relevant and Ordained no Declarator to be extracted till the Tack were Produced and given up to the Wodsetter Laird Balvaird contra Creditors of Annandail Eodem die THE Laird Balvaird As Heir of Tailzie to David Viscount of Stormont in the Lands of Skun Pursues the Heirs of Line of the said David and Mungo Viscount of Stormont and several their Creditors Lybelling That by an Infeftment of Tailzie of the saids Lands made by the said David Viscount of Stormont It is expresly Declared and Provided That none of the Heirs of Tailzie shall do any Deed prejudicial to the Tailzie or contract Debt whereby the Tailzie may be altered otherwayes the Debt so Contracted shall be null and the Contracter shall ipso facto lose his Right of Propertie which shall belong to the nearest Person of the Tailzie and subsumes that the late Earl of Annandail last Heir of Tailzie Contracted Debts which might effect the saids Tailzed Lands and concludes that it ought to be Declared that thereby he incurred the Clauses itritant in the Tailzie and lost his Right of Propertie and that all the Bonds Contracted by him and Appryzed upon are null quoad these Lands and that the Pursuer as nearest Heir of Tailzie may enter Heir in these Lands to David and Mungo Viscounts of Stormont and enjoy the same free of any Debt Contracted since the Tailzie The Creditors alleadged no Process to Annul their Bonds and Apprysing hoc ordine by way of Declarator but the Pursuer must via ordinaria Reduce in which Case the Creditors will have Terms granted them to produce the Writs called for to be reduced which Priviledge being in their favour ought not to be taken from them in this extraordinar unformal way The Lords repelled the Defense and sustained the Summons in respect there was no Bond craved to be produced or simplie reduced but only that any Bonds granted to the Defenders since the Tailzie are null and all following thereupon as to the Lands in Tailzie which is no more then that they affect not the Lands in the Tailzie
and therefore as is ordinar in all Clauses in relation to Heirs which cannot be effectual if Heirs served be understood their Heirs appearing are understood verba sumenda sunt cum effectu The Lords also Repelled this Defense Thirdly The Defenders alleadged absolvitor Because first Clauses de non alienando are never understood to extend to necessary alienations as for provision of the Feears Wife and Children for Redemption of him from Captivity or any other accident without his Fault Secondly Clauses de non Contrahendo debitum are against Commerce and utterly rejected Thirdly Clauses irritant are resolutive albeit contained in the Infeftment are but personal obliegements and the ground of an Action against the contraveener but if the Contraveener be denuded are not effectual against singular Successors Especially Creditors Contracting bonafide with one standing Infeft before the matter became litigious by Processes upon that Clause seing no Inhibition was used ita est thir Creditors had Apprized and were Infeft before any such Processes upon this Clause or Inhibition used and no personal provision could transmit the Right from Annandale to Stormount upon contraveening the Clausses nor could hinder the transmission thereof from Annandale who had the only real Right to the Creditors by vertue of their Appryzings and Infeftments which denuded Annandale of the real Right and which real Right stands now only in the Person of the Creditors Infeft so that there can be no more in Stormounts Person but a Personal Provision for the being within the body of the Infeftment will not make this Clause real and to affect the Right quo ad singulares successores more then the Clause of Warrandice in the Infeftment which without question reaches not singular Successors and albeit some Provisions in themselves Personal may affâ—ct singular Successors as the Provision that if two years run together the Feu shall become void or the Clauses of Reversion or the Inherent Clauses or quality in Ward holding but these become real by Law and Statute for we have a particular Act of Parliament anent Reversions to be effectual against singular Successors and another anent Feus â—b non solutum canonem and there is no other case that such Provisions are real The Pursuer answered to the fiâ—st albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition and are oftimes not extended to necessar Alienations Yet here the Clause bears expresly not to altenat and also to do no Deed whereby the Laws may be Evicted and Apprized without which the Clauses de alienando were utterly ineffectual and repeats the same to tâ—e second As to the third albeit de facto the real Right be in the Appryzers Infeftment yet it is in them effected with that quality in the condition and bosome of it that gives good ground not only against the Earl of Annandale Contraveener to annul his Right But also the Apprizer in consequence quia resoluto jure dantis resolvitur jus accipientis Especially in Feudal-rights where provisionis investiturae sunt legis feudi as all Feudists agree and therefore all such Pactions and Provisions are equivalent to Law 2d This Clause of the Infeftment is not only resolutive but also is an Interdiction Prohibiting the Feear for the time to alienat or do any Deed prejudicial without consent of such other Persons of the Tailzie were Majors for the time and therefore though the Pursuer should enter Heir to Annandale he might annul these Rights just as in the Case of an Heir of an Interdicted Person who may annul all Rights by his Predecessors after the Interdiction The Defenders answered that as to this Point concerning the Interdiction it cannot be effectual because by a particular Act of Parliament all Interdictions are appointed to be published and to be Registrat in the Registers of Inhibitions otherways they are null This Interdiction is neither published nor Registrat in that Register The Pursuer answered it is al 's publick because it is not only in his Infeftment at the great Seal but it is verbatum in the first Seasine and repeated in the Earl of Annandales Retour and Seasine so as that the Creditors ought to have considered his condition when they lent him Money and known that he was Infeft otherwise their mistake though it might be alleadged to be bona fidae yet if Annandale hade never been Infeft their bona fides would have wrought nothing seing therefore they did it on their peril unless they knew he was Infeft and they could not know he was Infeft by inspection of his Seasine or of the Register but they behoved to know this Clause which is verbatum in it The Lords did also Repel this Defense and Duply in respect of the Reply and Triply and found the resolutive Clause effectual against singular Successours especially considering it was so publick and verbatim in the Seasine and that it was equivalent to an Interdiction Thirdly The Defender further alleadged absolvitor because the pursuer hadâ— behaved himself as Heir to the Earl of Annandale by Intromission with the Mails and Duties of the same Lands The Lords Repelled this Defense because the Pursuer having intented Declarator against Annandale in his own life they thought the provision was equivalent to an Interdiction which purged that passive Title Creditors of Kinglassie February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day the Dispute anent the base Infeftment made publick by the poinding of the Ground so long before the Term of payment being reasoned before the Lords in presentia they sustained the same as before Marjory Chalmers contra William Dalgardno Eodem die MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods to pay his Debt who alleadged absolvitor because the Rebel died at the Horn and so had no Goods Secondly The Defender hath the gift of his Escheat and also is Executor Creditor Confirmed to him Thirdly The Defender had a Disposition of all the Defuncts Goods albeit he possessed not thereby during his Life yet he might Enter in possession after his Death and not be vitious Intromettor The Lords found this Defense Relevant to elide the passive Title but prejudice to either Party to Dispute their Rights as to the simple avail of the Goods and they Repelled the first Defense and found the second and third Defenses Relevant only if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun February 28. 1662. WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun as Successor titulo lucrâ—â—ivo to his Father to pay his Debt who alleadged absolvitor because he was not alioqui successurus in respect that at the time of the Disposition he had and hath an Elder Brother who went out of the Countrey and must be presumed on life unless the Pursuer will offer to prove that he was Dead before this Disposition so that at the time thereof the Defender was not
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
not for all Right he hath or may have or does not dispone with absolute Warrandice In these Cases the Authors Right supervening accresces not to the Acquirer but himself may make use thereof against the Acquirer much more any other having Right from from him 2ly The maxime holds not if the Authors Right be Reduced before he acquire the new Right in which case the first Right being extinct nothing can accresce thereto but the Author may acquire any other new Right and make use thereof 3ly The maxime hath no place if the Author do not acquire a new Right to the land which could be the foundation and ground of the Tack granted as if he acquired but the Right of an Annualrent which could be no ground of the Defenders Tack much more if he acquire a Right to the Mails and Duties of the lands either upon Sentence to make Arrested Goods furthcommand or an Assignation or Disposition of the Mails and Duties made to the Author for satisfying of a Debt to him by the Disponer This would be no Right to the land that could accresce to Validat a Tack The Defender answered First that his first Defense was yet relevant because albeit his Authors Right were reduced he not being called his Right would be a sufficient colourable Title to give him the benefit of a Possessory judgement untill his bona fides were interrupted by Process because his subaltern Right is not extinct till either by way of Action or Exception it be declared extinct as falling in consequence with his Authors Right reduced seing there is no mention thereof in the Decreet of Reduction 2ly Albeit Diligence had been used yet if the user thereof insisted not but suffered the Defender to possess bona fide seven year thereafter it revives that benefit of a new Possessory Judgement The Lords as to this Poynt found that the Interruption of the bona fides by Process did still take the same away unless it were Prescrived but found that before any Process the Defense should be relevant and therefore sustained only Process for the year since the Citation As to the other Defense in jure The Defender answered that his Defense stands yet Relevant notwithstanding all the Fallacies alleadged which are without warrant in Law and without example with us where this Maxime hath ever been held unquestionable that jus Authoris accrescit Successori unlesse the Successors Right be expresly limited to a particular Right or to any Right the Author then had but the Defender needs not Disput the Equivalence of the Cause unlesse such expresse Limitation were added there is no ground to presume an Exception upon the Personal oblidgment of Warrandice from fact and deed which oftimes is put in Contracts fully onerous but on the contrair there is a several Defense upon that very Clause that the Earl of Hoom whatever Right he should acquire yet if he should make use of it against this Defender he comes against his own Warrandice whereby he is oblidged that he has done nor shall do no deed prejudicial to the Defenders Tack neither is there any ground of Exception albeit the Authors Right was reduced before the new Right acquired from that ground that the new cannot accresce unto the old Right being Extinct because the Maxime bears that it accresces Successori non jure Successoris so that albeit the new Right do not Validat the old Right yet the new Right becomes the Defenders Right eo momento that it became the Authors Right per fictionem juris without deed or diligence and cannot be taken away by any subsequent deed of that Author more then if before such a deed he had particularly established his Successors therein because the fiction of the Law is equivalent to any such establishment neither is their any ground of Exception that the Authors Right Superveening is but an Annualrent which cannot Validat a Tack because if the Author were making use of that Annualrent to poynd the ground the Defender upon his Tack and Warrandice would exclude him because he could not come against his own dâ—ed and oblidgment yea albeit it were but a Right to the Mails and Duties quocunque modo The Lords having considered the Earl of Hooms new Superveening Right and that it was but the Right of an Annualrent of 300 lib. Starling with a Clause that incase of failzie of payment he might uplift the hail Mails and Duties till he were payed and that the Defenders Tack included only Personal Warrandice They repelled the Defense and found that such a Right could not accresce to the Defender to validat his Tack wherein some of the Lords had respect to that point that the Right was Reduced before this new Right but others as it seems on better grounds layed no weight on that if the cause onerous had been the full value and equivalent or if the Tack had born for all Right that I have or shall acquire which would accresce to the Successor as oft as ever it was acquired though all the prior Rights had been reduced but in this Case the Author not acquiring a new Right to the Lands but only to the Mails and Duties which in effect is but Personal it could not accresce to the Defender more then if the Author had been Factor to a thrid Part by the new Right and albeit the Clauses of Personall Warrandice might have Personally excluded the Earl of Hoom himself yet seing that Right could accresce to the Defender the Earl of Hoom having renunced or assigned it to a thrid Partie The Personal Objection against the Earl of Hoom upon the Personal Clause of Warrandice ceases neither did the Pursuer insist upon the Earl of Hooms Right but his own Elizabeth Scrimgeor contra Executors of Mr. John Murray Eodem die IN a Compt and Reckoning betwixt Elizabeth Scrimgeor relict of Mr. Iohn Murray Minister and his Executors these Queries were reported to the Lords by the Auditor First Whether the Defunct dying Infeft in an Annualrent could have an Heir as to moveable Heirship The Lords found he would seing the Annualrent was Feudum and he might thereby be esteemed as Baro as well as a petty Fewer Quest. 2. Whether the Defunct having died the day before Martinmas 1661. He would have right to any part of the Stipend 1662. As the Annat The Lords found he would have the half of 1662. Quest. 3. Whether he would have like right to the Gleib as to the Stipend by the Ann. The Lords found that could not be debaitable betwixt the Defuncts Relict and Executors albeit there was no compearance for a new intrant in which Case they thought that so soon as the intrant 〈…〉 were admitted he would have right to the Manse and Gleib and not the Defunct though the Defuncts Wife would have right to a part of the Stipend due after his entrie Quest. 4. Whether the Heretable Debt could exhaust the moveable Estate of the Defunct to deminish
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
was alleadged that the Executions of the first Summons were new and by ocular inspection false and craved the Pursuer might abide thereby who refused and so being without an Execution on the first Summons but having an Execution on the second were null The Pursuer craved them to be Transferred instatu quo but prejudice to the Defender in the cause to alleadge no Process because the first Execution was wanting The Lords refused to transfer but some were of opinion that a new Summons in eadem causa would be sufficient to make the Inâ—ibition effectual being raised on the Summons of Registration of a Bond others thought that albeit the Style bear that Inhibitions were not granted but upon fight of the Summons execute yet it was ordinar to give it on an unregistrate Bond or a Charge to enter Heir Execute though there was neither Decreet nor Dependence and therefore though Executions be put on to get these raised yet they are not adhered to but now used so that this Summons though without Execution yet might be transferred and thereon Executions might be used and thereby the Inhibition stands valid which was the more clear way for albeit Summons bear to cite to such a day next to come and so ordinarily cannot be used no citation being thereon within the year yet the Lords special warrand may allow a Summons to be sufficient for citation thereafter as well as they may give other priviledges Janet Shand contra Charles Charters Ianuary 13. 1665. CRichtoun of Castelmain and Crichtoun of St. Leonard granted a Bond to Iohn Shand and Herren his Spouse the longest liver of them two and their Heirs c. With a Clause for Infeftment whereupon there was an Appryzing led in Iohn Shands lifetime against one of the Debitors thereafter Iohn Shand charges the other Debitor for payment after the Charge Iohn Shand gives in the Appryzings to be allowed and after his Death his Wife takes Infeftment upon the Appryzing the Bond being now produced before the Lords in an Exhibition pursued by Ianet Schand as Heir to Iohn Shand. There is a competition for delivery betwixt Ianet Shand as Heir to Iohn Shand as being Heritable and Charles Charters as having right from Herrein Iohn Shands Relict as being moveable It was alleadged by the Heir that the Sum became Heretable by the Superveening of the Appryzing It was answered that there was a Charge after the Appryzing which returned the Bond to be moveable It was answered that the Charge was not against the Partie whose Lands was Appryzed but against the other Party 2ly The Charge could only return the Bond to its first condition before the Appryzing So that the Bond being since 1641. the Relict is excluded and the Charge cannot bring her in 3ly Albeit it could yet after the Charge the Defunct returned to his Heretable Right by obtaining that Appryzing allowed which allowance the Relict produced and took Infeftment so that these last Acts being upon the Real Right the Heir must be preferred and therefore the ground of preference of the Executor or Heir is the will of the Defunct either to make use of his Heretable or Moveable Right which is still ambulatorie and in his power and whatever Right he last makes use of evidences his choise and according thereto the Right is either Heretable or Moveable but here he did last make use of his Real Right by allowance of the Appryzing after the Charge which the Relict homologat by taking Infeftment conform It was answered for the Creditor of the Relict that this being on Debt though due by many Debitors The Charge against one did sufficiently show the purpose of the Defunct to make use of his Right and the Charge doth render the Bond simply moveable and doth not return to the condition it was before the Appryzing To the 3. passing from the Charge must either be express or a Deed of evident consequence but the allowance of the Appryzing is not such which might be done only ad hunc effectum that if the Appryzer should pass from his Charge the Appryzing might revive and be secure The Lords found the Sum Heretable Charles Charters contra a Skipper Eodem die CHarles Charters having fraughted a Ship to Queensburgh by Charter Partie The Skipper was to ly so many lye dayes and to bring a Fraught thence he returned without full Fraught whereupon Charles refuses full payment and being decerned by the Baillies of Leith to pay the rest he Suspends on this Reason that the Skipper ought to get the Fraught only proportionally to the Loading and offers to prove the third part less then the full Loading brought home and that the Skipper could not have his full Fraught unless he instruct that he intimat to the Factor at Queensburgh to whom he was direct of his coming and that he lay his lye dayes and after Intimation to the Factor to give him any Ware he had he took Instrument or protested thereon The Lords found he ought to prove the Intimation ut supra by Witnesses but required no Protest or Instrument thereon Edgar contra Edgar January 17. 1665. ISobel Edgar pursues for 4000 merks provided in her Mothers Contract of Marriage by this Clause whereby her Father having married her Mother to his second Wife oblidged him and the Heirs of the first marriage which failzing his Heirs and Executors to pay to his Bairns of the second Marriage 4000 merks albeit there were but one of them and if there were more the same Sum to be divided among them the Portions of the Male Children to be payed at their age of 21. and the Femal at the age of 18. And to pay them five of each hundreth after his Death till the Terms of payment Ita est the Heirs of the first Marriage failzied by decease and there was four Bairns survived of the second Marriage whereof two died before they attained to their age mentioned in the Clause and now there remains but two the Pursuer and her Brother who is become Heir whereupon she alleadges that she hath the benefit of the whole 4000 merks It was answered for the Brother that he hath right to the half because he is a Bairn of the Marriage as well as she and albeit he be become Heir yet that takes not away his Share by this oblidgment as a Bairn of the second Marriage 2ly Albeit his being Heir would exclude him yet the Portions of the two that are deceased having become Heirs by there survivancy transmit the same to their nearest of kine and so he and the Pursuer are equally nearest of Kin. The Pursuer answered that the Heirs of the first Marriage having failled the Clause stands now as if it had been conceived thus that the Father had oblidged himself and his Heirs which comprehends all Heirsâ— to pay to the Baiâ—ns of the second Marriage which must be understood of Bairns beside the Heir because the Heir is constitute Debitor and so cannot be
and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the â—â—eretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ— some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedâ—runts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coâ—â—pears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ— insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ— the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâ—uslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâ—ed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâ—fted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ— Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâ—uro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâ—ur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâ—ment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
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
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reâ—â—ptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce 〈◊〉 but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ— though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of â—imulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ— thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be â—lided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâ—lvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
obtained that that Decreet should be transferred against him and it should be declared that the Adjudication should proceed against the next Appearand Heir It was alleadged for the Defender that the former Appearand Heir having dyed before Adjudication and so the Diligence being incompleat there could be no Process thereon till this Defender were again charged to enter Heir to the first Defunct especially seing he had Annum deliberandi competent to him of the Law which would be taken from him if this order were sustained and as an Appearand Heir charged though the dayes of the Charge were run before his death the same would be void if no Decreet had followed thereupon And the obtainer behoved to obtain his Diligence thereupon renewed so it ought to be in this Case It was answered the Case was not alike for here there is a Decreet obtained upon the Heirs Renounciation and there is no reason to put the Creditor to do diligence again especially now since the late Act of Parliament whereby if he get not Adjudication within a year he will be excluded and there are other Appryzings already deduced The Lords Sustained the Process hoc ordine with this provision that if this appear and Heir entred and Infeft himself within year and day the Adjudication should be redeemable to him within the Legal Reversion of 10. years by which neither the Creditor was prejudged of his diligence nor the Heir of his Priviledge Lord Rentoun Justice Clerk contra Fewars of Coldinghame Eodem die MY Lord Rentoun as being Infeft in the Office of Forrestrie by the Abbot of Coldinghame containing many special servitudes upon the whole Inhabitants of the Abbacie as such a dutie out of Waith Goods and out of all Timber cutted in the Woods of the Abbacie with so many Woods Hâ—ns and a Threave of Oats out of every husband Land yearly pursues Declarator of his Right and payment of the bygones since the year 1621. And in time coming both Parties being formerly ordained before answer to produce such Writs and Rights as they would make use of and these being now produced The Pursuer insisted primâ— Loco for Declaring his Right as to the Threave of Oats It was alleadged for the Defenders absolvitor because they had produced their Fews granted by the Abbots of Coldinghame prior to the Pursuers Infeftment free of any such burden It was answered The Defense ought to be Repelled because the Pursuer has not only produced his own Infeftment but his Predecessors and Authors Infeftments and his progresse to them viz. The Infeftment granted to David Evin of the Forrestrie containing all the Duties a foresaid which is before any of the Defenders Infeftments produced It was duplyed for the Defender that the Infeftment granted to the said David Evin is no original Infeftment but bears to be granted on his Mothers Resignation and has no special reddendo but only relative to the former Infeftments And therefore unless the former Infeftments were produced or it were instructed that the Resigner had Right the Infeftment upon Resignation can operat nothing especially never being cled with Possession as to the Threaves of Oats in questionâ— for there is great odds betwixt Infeftments granted by Kirkmen who are but administrators of the benefices and others who have plenum dominium so that Infeftments upon Resignation of Kirkmen are to be understood to confer no more Right than the Resigner had and not to constitute any original Right where there was none before in the same way as Infeftments granted by the King upon Resignation are but periculo petentis and give no Right further then the Resigner had even against the King It was answered for the Pursuer that his Reply stands relevant and he produces sufficiently to instruct his predecessors Right for there is no Law nor Reason to compell Parties to produce the old Original Feus granted by Kirkmen but Infeftments upon Resignation are sufficient neither is the Case alike as to the King and Kirkmen because things passe not by the King ex certa scientia which no other can pretend but in this Case declaring a Right granted by an Abbot with consent of the Convent it must be considered what made a Right the time that it was granted when there was no more required then his Concession with consent foresaid which is sufficient against him and his successors neither can they pretend that such grants are salvo jure suo And if in matters so Ancient Original Infeftments from Kirkmen behoved to be produced that neither Precepts of clare constat nor Infeftments upon Resignation were sufficient Few rights of Kirk-lands in Scotland would be found valid The Lords Repelled the Defense in respect of the Reply and found this Infeftment upon Resignation sufficient Iohn and Ioseph Heriots contra James Fleming Messenger and Cautioners January 19. 1666. JOhn and Joseph Heriots having obtained Decreet before the Lyon against James Fleming Messenger and his Cautioners depryving the Messenger upon Malversation in so far as being imployed to execute a Caption he had taken the Debitor and had Denounced and Appryzed his Lands and suffered the Debitor to escape and would not subscribe the Decreet of Appryzing whereupon he was depryved and decerned to pay 500. merks conform to the Act of Parliament 1587. cap. 46. And both he and his Cautioners were decerned to pay the Sum as Damnage and Interest to the Pursuer They Suspend and alleadge that the Decreet is null in so far as it was pronounced by the Lord Lyon without the concourse of the Heraulds which is required by the said Act. 2dly Albeit the Lyon be impowred to deprive Messengers by the said Act yet their Cautioners are not under his jurisdiction nor the damnage and interest of Parties by Messengers malversation which is only competent to the Judge ordinary It was answered to the first oppons the Decreet wherein the Cautioners compeared and so acknowledged the Lyons Jurisdiction as he then sat likeas the Decreet it self bears to be by the Lyon with the Heraulds To the Second The Cautioners having enacted themselves in the Lyons Books they have made themselves lyable and for the damnages they are consequent to every Jurisdiction and the Lyons have been constantly in use to determine the same as to this Point The Lords were of different judgements for they thought that by the Act of Parliament the Lyon had no such power but as to long Custom some thought it was sufficient to give that power and there was no inconveniencie seing his Decreets might be Suspended Others thought that Custome being clandestine and without the contradiction of Parties who might voluntarly submit themselves to any Authority could not be sufficient The Lords Ordained before answer the Lyons Books to be produced to see if there were such a Custome before it were decided and how far that Custome would work Christian Braidie contra Laird of Fairney January 20. 1666. CHristian Braidie having pursued a Reduction of a
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
non habente potestatem obtained payment of a Terms Rent before the Decreet of Reduction Ianet pursues for that Term and alleadges that the Decreet of Reduction could not be effectual till it were pronunced albeit it bear her Right to be null ab initio yet that is but stylus curiae It was answered that the Tennent payed bona fide after Reduction obtained and intimat to him and that the Lords may ex arbitrio find the effect of the Reduction either to be asententia Litiscontestation or a Citation In this Reduction the Lords Assoilzied the Tennent for this Term though before Sentence Earl of Winton contra Countess of Winton Eodem die THe Earl of Winton pursues a Reduction of an agreement made by his Tutors and Curators with my Lady giving her a certain Duty for her Interest in his Coal as being minor and laesed in so far as by her Contract she had only Right to the fourth part of the Coal in his Property now his Coal for several years has been in his Feuars Lands by Reservation in their Rights And also craved the bygons It was answered that bona fide possessor facit fructus consumptos suos the Lady by the Agreement could not compt for the years Duty she had gotten It was answered that this holds not in the case of Minority and Laesion It was answered that albeit Minority Repones as to any principal Right yet not as to the Fruits and accrescences medio tempore The Lords Reduced but Assoilzied the Lady from Repetition Sharp of Houstoun contra Glen Eodem die GLen Pursues for Mails and Duties of some Lands Houstoun compears and alleadgesthat he has Right to these Lands by an Apprizing expired It was answered his apprizing was null because it proceeded on four Bonds the Term of payment of one whereof was not come the time of the Appryzing and so not being due the Apprizing was void quoad totum It was answered the sum was due albeit the day was not come and so being but plus petitum tempore he was willing to admit the apprizing to be longer time by the double redeemable after the legal were expired then all the time he apprized before the hand The Lords found the Appryzing void as to that sum Whereupon occurred to them to consider whether the appryzing should fall in totum or stand for the other 3 Bonds And if it stood for these whether a proportionable part of the Lands appryzed effirand to the Bond whereof the Term was not come should be found free or if the rest should affect the whole Lands as if for these only the appryzing had been led wherein the Lords were of different opinions and recommended to the Reporter to agree the Parties Lady Otter contra Laird of Otter Eodem die LAird of Otter having Infeft his Wife in Conjunct-fee or Liferent in certain Lands cum molendinis did thereafter build a Miln thereupon and the question arising betwixt the Liferenter and the Heir who should have Right to the Miln The Liferenter alleadged aedificium solo cedit The Heir alleadged that a Miln is distinctum tenementum that cannot pass without Infeftment aud the Clause in the tenendo cum molendinis is not sufficient not being in the Dispositive Clause nor any Miln built then and he offered to make up all the Liferenters damnage by Building on her Ground The Lords found that the benefit of the Miln belonged to the Liferenter as to the Multures of all that was ground without the Thirlage but found it not to extend to Lands of the Defuncts which he had Thirled to the Miln John Hay of Knokondie contra Litlejohn Eodem die JOHN Hay pursues Litlejohn for the damnage sustained by a House belonging to Litlejohn falling on the Pursuers House It was alleadged the Defender was only Apprizer of a Liferenters Right and this behoved to lye upon the Fiar who was oblieged to uphold the Liferenters House The Lords found the Defender lyable seing he possest as Apprizer sixteen years and also intrometters with the profits of the House are liable for the damnage sustained thereby seing both Fiar and Liferenter were oblieged to uphold it and are liable de damno Lord Salton contra Laird of Park and Rothemay Feb. 20. 1666. THe Lord Ochiltry having a Disposition of the Estate of Salton from the umquhil Lord Salton in anno 1612. Disponed the same to Park Gordon Rothemay and others This Lord Salton having granted a Bond to Sir Archibald Stewart of Blackhall he thereupon apprized all Right that could be competent to the Lord Salton of that Estate which Right being now retrocessed to the Lord Salton he pursues Reduction of the Lord Ochiltries Disposition and of all these Rights founded thereupon in consequence The reason of Reduction is founded upon an Interdiction against the Lord Salton Disponer before his Disposition and there having been a Process formerly depending at the instance of umquhil Sir Archibald Stewart and being Transferred after his Death the Lords allowed the Process to proceed upon the Minute of Transferrence without Extracting the Decreet of Transferrence which behoved to include the Process and hail minuts which could not be done for a long time whereupon the Lord Salton now insisting in the principal Cause It was alleadged first No Process till the Principal Cause were wakened For albeit the principal Cause be Transferred yet it is but instatu quo and therefore being sleeping there can be no Process till after the Transferrence there be a wakening The Lords Repelled this Alleadgence and found the Transferrence sufficient without any wakening It was further alleadged Absolvitor because the Pursuers Title being an Apprizing the Defender has an anterior Apprizing which does exclude the Pursuer◠ay and while it be Reduced or Redeemed It was answered that the ground of this Pursute being a Reduction upon Interdiction the Interdiction cannot be directly apprized but only the Lands belonging to the Person Interdicted being Apprized all Apprizers or other singular Successors coming in the place of the Heirs of the Person Interdicted may pursue on their Rights and thereupon Reduce voluntar Dispositions made contrair the Interdiction which Interdiction is not a Right it self but medium impedimentum exclusivè of another Right as an Inhibition and as a first Appryzer cannot hinder a second Appryzer to make use of his Right except in prejudice of the first Appryzer so he cannot hinder him to make use of the Interdiction to take away a voluntar Disposition◠but prejudice of the first Appryzers appryzing as accords And in the same way a second Appryzer or any Creditor might pursue upon an Interdiction or Inhibition against a Creditor Which the Lords found Relevant and declared the Pursuer might Reduce this voluntar Disposition upon the Interdiction but prejudice of the Defenders appryzing contra Hugh Mcculloch Eodem die THe Laird of Balnigoun being arrested in Edinburgh for a Debt due to a Burges Heugh Mcculloch became Caution for him
in these Termes that he should present him to the Diets of Process and should make payment of what should be Decerned against him if he did not produce him within Termes of Law pendente lite Balnigoun raises Advocation and at the same Diet that the Advocation was produced Judicially before the Bailzies Heugh Mcculloch also produced Balnigoun and Protested to be free of his Bond as Cautioner the Bailzies did not Incarcerat Balnigoun but refused to Liberat Heugh Mccullochâ— till they saw the Event of the Advocation The Cause bâ—ing Advocat and Decerned against Balnigoun who succumbed in an alleadgence of payment The Pursuer craved Sentence against him and Heugh Mcculloch his Cautioner It was answered for Heugh Mcculloch that he was free because he had fulfilled his Bond in presenting Ballangoun and Protestâ—ng to be free albeit the Bailzies did not free him that was their fault It was answered that the Advocation being raised hindred the Bailzies to Incarcerat because they might not proceed after the Advocation and therefore the Cautionrie behoved to stand otherwise all Acts of Caution to answer as Law will might be so elided The Lords found the Cautioner free and found that the Bailzies notwithstanding of the Advocation might Incarcerat the principal Party unless he had found new Caution for seing if he had found no Caution a principio but had been Incarcerat till the Cause had been Discust the Advocation would not have liberat him and whensoever the Cautioner produced him Iudicially and protested to be free he was in the same case as if he had been Incarcerat and therefore the Bailzies might have detained him in Prison notwithstanding of the Advocation which did sist the Cause Mcbrair contra Sir Robert Crichtoun alias Murray Eodem die DAvid Mcbrair pursues a Removing against Sir Robert Crichtoun who alleadged absolvitor because the warning was null in so far as he being notourly out of the Countrey The Warning proceeded on 40 days not only at the Ground and Paroch-kirk but also at his Dwelling-house whereas it ought to have been on Letters of Supplement on 60 days at the Mercat Cross of Edinburgh Peer and Shore of Leith It was answered that the Act of Parliament anent Warning was only on 40 days without distinction being out of the Countrey or in the Countreyâ— and it was sufficient that the Summons of Removing upon the Warning was upon 60 days because the Warning at the House was rather an Intimation then a Citation which was sufficient seing the Defender had been butshort while out of the Conntrey not animo remanendi and so had still a Domicile where he was Cited The Lords sustained the Warning but in Respect the Defender had probabilem causam dubitandi They superceeded the Execution to the next Whitsonday without any violent profits Lord Borthwick contra his Wodsetters Feb. 21. 1666. THe Lord Borthwick pursues an Accompt and Reckoning against several Wodsetters who had Wodsets from him in the year 1660. to Count and Reckon for the Superplus of the Wodset more then their annualrent since the Act of Parliament between Debitor and Creditor upon that Clause thereof appointing Wodseters who have proper Wodsets before the year 1650. or since before the Act to Compt and be lyable for the superplus more than their due annualrent It was alleadged for the Defenders That the Pursuers had in the Wodsets expresly Renunced the Usurpers Act in favours of Debitors and all such Acts made or to be made and by the said Act between Debitor and Creditor there is an Exceptionâ— where Persons have renunced such Acts. It was answered that that Exception is insert in the Act before this Clause in Relation to Wodsets and does not relate to it but unto the former Provisions of Suspending the Sums which was also the Tenor of the Usurpers Act and therefore the Exception of the Renuncing such Acts cannot extend to the Case of accounting for Wodsets which could not be thought upon the time of the Wodset and of the Renunciation this Clause being according to common Law to hinder Usury which might have been indirectly taken by proper Wodsets though these by the Custom use not to be quarâ—elled The Lords Repelled the Defense in respect of the Reply and found the Exception not to extend to the Case of Wodsets It was further alleadged for the Defenders that they were not lyable to to compt for the Superplus for all years bygone since the Act of Parliament nor at all except in the Case that they had been required to quite the Possession of the Wodset and Security had been offered them for their Money and they had chosen rather to retain the Wodset and to compt for the Superplus for as to all years preceeding they were bona fide Possessors and had ground to presume that the Pursuer did acquiesce in the Wodset as only proportionable to the annualrent and it were unjust and of evil consequence that if the granter of the Wodset should forbear to offer Security for 20 years upon his offer then the Wodsetter should be oblieged to Compt from the Act of Parliament It was answered that there was no inconveniency seing the Wodsetter might if he pleased quite the Possession and then was not comptable at all But if he would retain the Possession he could not refuse to compt for all bygones since the Act of Parliament The Lords having considered the Clause of the Act of Parliament found the Defenders only lyable from the time of the offer of Caution and Requiring the Possession and not from the date of the Act of Parliament seing the Clause bears they shall have by the Wodset which looks to be future only and seing the Wodsetters might have Builded or Planted for their own accommodation and therefore might rather reain the Possession then other Security Ogilby contra Eodem die THe like case was decided betwixt Ogilby and where this was further Represented that the Summonds could not be Sustained unless the offer had been made by way of Instrument before the Summons yet the Lords Sustained the offer instantly made to have effect ab hoc tempore but not from the Citation It was also further alleadged for the Defender that there was now no Caution offered It was answered for the Pursuer that there needed no Caution if the Wodsetter choised to retain the Possession because the Wodset it self was sufficient Security It was answered that they were not obliged to declare their option till Caution were first offered by the granter of the VVodset and the Statute behoved to be strictly Observed It was answered that there was here no detriment to the VVodsetter and the granter of the VVodset might be so poor as not to be able to find Caution The Lords found in respect of the Act of Parliament that Caution behoved to be offered and would not exceed the Terms thereof contra The Sheriff of Inverness Eodem die 〈…〉 being pursued for Theft-boot before the Sheriff of Inverness upon the
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
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
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
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâ—ens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto â—gritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâ—ing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
Die UMquhil Dumbaith having Disponed several Lands to his Oy Iohn Rosse Brother to Kilraick the Laird of May Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition and insisted upon this ground that the Disposition was false in the Date and that the Defunct was aliâ—it the time it appeares to have been subscrived and therefore is false in all It was answered that there was only an Error in the Date in respect the same Right having been conceived formerly in formerly in favours of another Dumbaith gave order to draw it over in favours of the Defender verbatim and the Writer ignorantly Wrote over the Date as it was in that first Disposition which can no ways annul the Writ especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith and them as Witnesses when he was in his Liege-poustie against which no alledgeance of alibi by other Witnesses not insert can be respected This having been Dispute in the English time the Witnesses were Examined before answer by three of the Judges and now the Cause was Advised The Lords found the Defense relevant to elide the Improbation that the Writ was truly subscribed before the Defunct was on death-bed and found the samen proven by the Witnesses adduc'd and thereafter assoilzied Laird of Rentoun Iustice Clerk contra Lady Lamberton Eodem Die THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence and the Pursuer being now Restored he is lyable to Count to him in the same manner as to the Estates not only for his Intromission but for his Negligence whereby he suffered other Persons publickly and avowedly to cut the Pursuers Woods of a great value and did no ways stop nor hinder the same nor call them to an Account 2ly He himself Intrometred with the said Wood at least others by his Warrand which Warrand must be presumed in so far as he having a Commission and oblidged for diligence did not only suffer the Wood openly to be cutted but applyed a part thereof to his own use and was oftimes present when it was in cutting by othersâ— The Defender answered First That he could never be lyable to the Pursuer for his Omission because his only Tittle was his Right of Property whereby the Defender was lyable to Restore to him what he had Intrometted with and not Counted for but for his oblidgement to do Diligence it was only personal granted to the Estates and albeit they Restored the Pursuer to the Estate they never Assigned him to that Obligation 2ly The Defender is secured by the Act of Indemnity except in so far as he Intrometted and did not duely Count as was found by the former Interloquitor in this Cause and as to the second member It was answered that the Defender being only Countable for his Fathers Intromission not Counted for albeit he had given warrand to others except he had received satisfaction from them it is not his own Intromission 2ly Warrand or Command is only Probable by Writ or Oath and no way by Presumption upon such Circumstances which Presumptions are also taken off by others more pregnant viz. That these Woods were cutted by Persones in Power and Interest in the Countrey who had no Relation or Interest in the Defenders Father whom he was not able to stop or hinder and most part thereof was Clandestinly cut and stolen away by meaner Persons It was answered for the Pursuer that he being Restored Succeeds in place of the Estates and as what is done by a negotiorum gestor without Warrand is profitable for these for whom he negotiats so must this be which was done by the Estates As to the Act of Indemnity the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed As to the second member the Pursuer answered that what was done by others by the Defenders Fathers Commission must be his Intromission seing it is all one to do by himself or by another and seing it cannot be called Omission it must be Intromission 2ly Though Command or Warrand is ordinarly Probable by Writ or Oath Yet there are casus excepti as whatsoever is done for any Party in his presence is by all Lawyers said to be ex mandato inde oritur actio mandati non negotiorum gestorum so that the presence or tollerance of a person not only having Power but being oblidged for Diligence must much more infer his Power or Warrand And albeit he was not alwayes present yet the Deeds being publick and near the place of his abode it is equivalent The Lords inclined not to sustain the first member both in respect of the Act of Indemnity which bears in it self to be most amply extended and in respect that the Pursuer had no Right to the Personal Obligation or Diligence but as to the second member the Lords were more clear as to what was done in the Defenders Fathers presence but in respect it was more amply proponed The Lords before answer ordained Witnesses to be Examined by the Pursuer whether or not the Woods were publickly cutted and whether or not Lambertoun was at any time there present and apply'd any thereof to his own use and Witnesses also for the Defender to be Examined whethâ—r a part was cut Clandestinly and other parts by persons having no relation to Lambertoun and to whom he used any Interruption Eodem die THis day there being a Query formerly given by the Lord Thesaurer whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion before the Justice General so that the Justice might proceed against them though absent by putting the Dittay to the Tryal of an Assyze and taking Witnesses thereupon and upon Probation to proceed to the Sentence of Forfaulture or whether Probation in absence could not be admitted but before the Parliament There were Reasons given with the Query for the affirmative viz. That there was a special Statute for Forfaulture of Persons after their death in which case they were absent multo magis when they were living and contumacious 2ly Because by the Civil Law albeit Probation especially in Criminals cannot proceed unlesse the Defender be present Yet the chief Criminal Doctors except the case of lese majesty as Clarus Farenatius and Bartolus 3ly That the Parliament proceeds to the Forfaulture in absence not by their Legislative Authority but as a Judicature and what is just by them it is just also by the Justice The Lords demured long to give their Answer upon thir Const â—erations that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party and that there had never
been such a Practice for the Justices to Forefault Absents but only to declare them Fugitives whereupon being denunced their Escheat fell and after their Liferent and that it was not proper to the Lords especially in cases Criminal to give advice in that which might predetermine the Justice General and the Justice Clerk and Advocat who had been desired to peruse the Books of Adjournal and they reported that they had not found a Forfaulture by the Justices in absence but that they had found that a Party accused for Treason in holding out a house against the King was declared Fugitive but they did not find that it was proponed to the Justices to put an Absent to an Inquest for Treason and that it was repelled The matter being resumed this day the plurality resolved for the affirmative especially considering that of old Parliaments were frequent in Scotland and now are but rare and that the Lords of Council and Session were the Kings Council to give his Majesty their advice in general Cases what might Legally be done whether Civilly or Criminally Andrew Ker contra Children of Wolmet Eodem Die UMquhil Wolmet having set a Tack of his Coal to his Children for their Provision and Named Andrew Ker of Moristoun and Tarsonce Overseers the said Andrew Intrometted with the Coal for some years the Children pursued him before the late Judges for Payment of the Profit of the Coal In which pursuit he did alledge that he could not Count nor Pay to the Children the whole Profit of the Coal but so much thereof as was free over and above the Back-tack Duty due both out of Land and Coal by vertue of the Wodset granted to Iames Loch who stood thereupon publickly Infeft and to which Wodset Mr. Mark Ker his own Son had Right to whom he had payed the Back-tack Duty and obtained his Discharge this being found relevant by the Judges he produced Holograph Discharges granted by his Son the Judges found that these Holograph Discharges did not prove Payment made debito tempore and therefore decerned without allowance of the Back-tack Duty Andrew Ker pursues a Reduction of this Decreet as unjust in so far as the Back-tack Duty was not allowed as not payed debito tempore whereas the Back-tack being a real Burden upon the whole Profits jure hypothecae all Intrometters with the Profits were lyable to the Wodsetter and so Andrew Ker as Intrometter was lyable to the Wodsetter and was not obliged to imploy that part of the Profit for Anualrent to the Children although he were obliged to imploy their own means and so might lawfully have payed the Wodsetter or keeped it in his own hand for his own relief and the Wodsetters Discharge at any time was sufficient to free the Children It was answered that there was no iniquity committed because Andrew Ker could only be lyable for the Back-tack Duty as Tutor and Overseer to the Children and even in that case he ought not to have payed without a distresse otherwise he prejudged the Children of their relief against the Heir who is obliged to relieve them of the Back-tack Duty and when ever he were distrest he would not he obliged to pay any Anualrent to the Wodsetter for the Back-tack Duties which was the Wodsetters own Annualrent so that till the time of the distresse the whole Annualrent should have been put out to the use of the Children upon Annualrent so that the Back-tack Duties can only be allowed from this time but not yearly as they were due otherwise the Bairns lose the benefit of the Anualrent the mean time but there being no distresse Andrew Ker could never be lyable to the Wodsetter It was answered for the Pursuer that the Wodsetter being his own Son there was no reason to put him to any Action especially seing the Defenders cannot alledge that in any such Action they had a competent Defense or that the Heir has any Defense whereupon to exclude their relief Neither is there any reason that the Children should have Anualrent for the Back-tack Duty till it was payed because it was not theirs nor might he safely put it out of his hands albeit the Wodsetter had been a stranger and albeit he be now functus officio as Overseer the Title that made him lyable to the Wodsetter was as Intrometter which is a perpetual obligation the Wodsetter as all Masters of the ground having jus hypothecae upon the Profit for payment of Tack Duty for which all Intrometters are lyable The Lords reduced that part of the Iudges Decreet and found that Moristoun as Intrometter was lyable to the Wodsetter and might retain so much of the Profits in his hands as would pay the Back-tack Duty and was not obliged to give out for the Children upon Annualrent But if de facto he had given it out in his own name for Annualrent found that the Children should have the benefite thereof Lady Milntoun contra Laird of Milntoun Feb. 25. 1667. THe Lady Milntoun having obtained Divorce against Iohn Maxwel younger of Calderwood her Husband before the Commissars of Edinburgh Sir John Whitefoord of Milntoun who had gotten a Disposition of her Liferent-right from her Husband pursues Reduction of the Decreet of Divorce on these Reasons that the Decreet was in absence and that he compeared befor the Commissars and craved to be admitted for his entrest and was refused and if he had been admitted he would have objected against Paterson and Clerk the only two proving Witnesses that they were not habile Witnesses being neither men of Fame nor Estate and Paterson by common Reputation of very evil Fame and that they were not purged of partial counsel but suborned by the Lady and had both received money to bear Testimony and promise of more and were prompted by the Pursuer how to Depone 2ly As they were not habile so neither did they prove the Commission of Adultery The Lords caused produce the Processe and Testimonies before the Commissars and finding that the Witnesses were not purged of partial counsel they ordained them to be re-examined upon such Interrogators as were not contrair to their former Depositions whereupon they were twice re-examined Paterson in his first examination before the Commissars Depones that he knew John Maxwel and his Lady and that he saw John Maxwel in naked Bed with Margaret Davidson lying above her and that he upbraided Iohn Maxwel for it who answered he carried not alwise his Wife about with him Clerk Deponed that in another Moneth at Edinburgh he saw John Maxwel in naked Bed with Margaret Davidson and that the said Iohn was very displeas'd at his coming in to the Room The Goodman of that House being another Witnesse deponed that John Maxwel and another Man and two Women lay altogether at one time in one Bed in his House and that he saw John Maxwel very familiar with one of the Women Embracing and Kissing her and keeping her upon his knee whereupon he put them out
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
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses Deponed
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
Tennents neither is the Appryzing equivalent to an Resignation accepted albeit it being an incompleat legal Diligence it may be compleated against the Superior after the Vassals Death yet not so as if the Superior had Received a Resignation from the Appryzer which is the Superiors voluntar Deed but there is nothing upon the Appryzing to force him to give Infeftment to the Appryzer until conform to the Act of Parliament a years Rent of the Appryzed Lands be offered to him and therewith a Charter offered to Subscrive which being done upon his Delay Fault or Contumacy he may be excluded from the subsequent Casualties and cannot thereby be gainer in prejudice of the Appryzer but otherwiâ—e without his Fault he cannot loss the Casualties It was answered for the Appryzer that the Appryzing and Charge did state the Appryzer as Vassal and there was no inconvenience thereupon to Creditors more then if they had been actually Infeft 2dly Our Statute hath provided contrair to the Common Feudal Customs that Superiors must Receive Strangers being Creditors Appryzing for payment of a years Rent so that the Superior can have no more but the years Rent and not the subsequent Waird also and there being mutual Obligations between the Superior and the Appryzer introduced by the Statute viz. that the Superior should Receive the Appryzer and that the Appryzer should pay to the Superior a years Rent as in all mutual Obligations so in these the Delay of the one Party in performance of his Obligation doth stop the Execution and Effect of the other Obligation to him ay and while he perform but quando mora purgatur by performance of the one Party both Obligations are effectual as a principio and therefore albeit the Appryzer had been obliged to pay a years Rent when he were Inâ—eft and did it not the time of the Charge yet now he offers to do it at the Bar unde purgatur mora and the Superior must Receive him in obedience to the Charge which must be drawen back to the Charge and the Lords cannot but find the Leâ—â—ers that is to say the Charge orderly proceeded neither can there be any fault in the Appryzer that he did not then offer a years Duty when he Charged because it was not liquid nor constant what the years Duty was and therefore he was only obliged to do it after the liquidation and modification of the Lords and lastly he having proceeded as all other Appyzers have done by perpetual Custom he was in bona fide to acquiesce It was answered for the Donator that this former ground holds still good that the Casualties of his Superiority cannot be lost to him without his Delay or Fault and the Case is no way here as in mutual Obligations but as in a Conditional Obligation for the Statute obliges the Superior to Receive the Appryzer he paying a years Rent which being per ablativum absolute positum is ever interpret as Condition as if it had said the Superior shall Receive him if he pay a years Rent but by the Statue there is no obligation put upon the Appryzer to pay the years Rent for the payment is in Condition and not in Obligation and the Appryzer may ever forbear to seek the Infeftment and yet will obtain Malls and Duties and so will Possess and exclude the Superior both from the Casualities of his Superiority and his years Rent therefore by the Statute there is only a Conditional Obligation upon the Superior to Receive the Appryzer upon payment of a years Rent now the nature of all Conditional Obligations is that pendente conditione ante purificationem nulla obligatio so that till that time whatever occurs is freely the Superiors And albeit the Lords will now upon offer of a Charter and the years Duty give a Sentence the ordinar Stile whereof is finding the Letters orderly proceeded without putting the Appryzer to a new Charge yet they do not thereby find that at the beginning the Charge was orderly without the offer but that now it becomes orderly by the offer and therefore hath only effect from the offer and not from the Charge and prejudges not the Superior of the Waird falling before the offer 2dly The Superior at the time of the Charge offered obedience upon production of a Charter and a years Duty to the Messenger who Charged him conform to an Instrument produced the Appryzer himself not having Appeared The Appryzer answered that the Superior ought to have drawen up a Charter and Suspended Consigning the Charter in the Clerks Hands in obedience to bâ— given up to the Appryzer after payment of the years Rent conform to the Lords modification and it was not enough to offer obedience to a Messenger or to require a years Rent which is not liquid but by the Lords Sentence and further alleadged that it was lately found that a Liferent Escheat falling after a Charge did not exclude the Appryzer and there can be no Reason but the same should be in a Waird It was answered that no such Practique was produced nor acknowledged and that in a Liferent Escheat the Vassal against whom the Appryzing was led might collude and might let himself go year and day at the Horn of purpose to prejudge the Appryzer but the Waird falling by his Deâ—th there is no suspition of collusion and the Waird is due by the reddendo of the Charter but the Liferent is only due by an extrinsick Law and Custom The Lords found that the Charge did noâ— stâ—â—e the Appryzer as Vassal so that the Waird would have fallen by his Death neither did they consider the inconveniency of the Superior as wanting the Superiorities by both Parties if he were Contumacious aut in culpa But they found that the Superior was not in culpa or in mora until the Appryzer presented to him a Charter upon obedience and offered some Money for his Entry and Caution for what further the Lords should Decern and did not find the Superior obliged to require the Vassal so to do and therefore found the Superior here not in mora aut culpa and found the Waird to belong to him and preferred the Donator and declared they would follow it as a Rule in all time coming Thomas Cowan contra Young and Reid Eodem die ADam Young having Married his Daughter by the first Marriage to Thomas Cowan and given him two thousand Merks of Tocher in satisfaction of all she could claim did by a second Contract of Marriage provide a thousand Merks to the Heirs of that Marriage and all his Conquest during the Marriage after which Contract he gave a Bond of 400. Pound to his Daughter of the first Marriage bearing to be payed in parcels as he was able and after the Bond he Disponed his Goods and Gear to his Daughter of the second Marriage Now the Daughter of the first Marriage pursues the Daughter of the second Marriage to pay the Bond as she who Intrometted with the Defuncts Goods The
the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâ—as rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâ—ere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ— which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ— the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be
Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen Lesly
having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself the
Inhibition viz. by Executing at the Mercat Cross of the head Burgh of the Shire he hath produced three Inhibitions about that same time Execute as his is so that what was then holden repute to be the head Burgh is sufficient for him to make his Legal Diligence subsist And for the Inhibition Execute at Culross in Anno 1657. It cannot be respected because it is known that at that time Regalities were supprest by the English and for the Inhibition in Anno 1666. It might have been done of purpose pendente processu and cannot regulate the custom the time of the Pursuers Inhibition which was in Anno 1633. The Lords Sustained the Pursuers Inhibition and Reduced for they neither found it clear that Culross was repute a Regality not that the custom was to Execute Inhibitions there at that time but at Pearth the head Burgh of the Shire Mr. Iames Cheap contra Magistrates of Falkland Iune 18. 1670. MR. Iames Cheap pursues the Bailzies of Falkland to pay their Debt due to him by Provest Mains who being taken by Caption and delivered to the Bailzies by the Messengers they keeped him in a private House for the space of ten dayes for which they are alse well lyable for the Debt as if they had brought him out of the Tolbooth and keeped him in the Town during so much time and also they were lyable in so far as having put him thereafter in the Tolbooth they suffered him to escape forth thereof It was alleadged for the Defenders they were not obliged to keep Prisoners not being a Burgh Royal but only a Burgh within a Steâ—â—rtry which no Law obliges to receive Prisoners and the Caption is only Direct to Sheriffs Baillies of Regalitie or Royalty Steuarts and Magistrates of Burghs Royal but not to Burghs within Steuartries or within Regalities albeit they were the head Burghs of the Steuartry or Regality not being Burghs Royal. 2dly The Defenders cannot be lyable for keeping the Prisoner some dayes out of the Tolbooth seing he did not then escape And albeit it be a fault for which they may be censured to keep a Prisoner in a private House yet the doing thereof if the Rebel escape not makes them not lyable to the Debt but especially where the Rebel was never in the Tolbooth and when there was Treaty betwixt him and the Pursuer and his Servant for an agreement and satisfaction and security for the Sum. 3dly They offered to prove that the Tolbooth was sufficient and that the Prisoner escaped vi majori by breaking the Roof of the Prison without their fault The pursuer answered to the first that he opponed the Act of Parliament ordaining sufficient Prison-houses in all Burgâ—s Parl. 1597. cap. 273. 2dly Whateven this Burgh might have pretended for refusing to accept the Prisoner yet having accepted him and suffered him to escape they are lyable as having acknowledged themselves to be lyable and if they had refused the Prisoner the Pursuer would have Imprisoned him in another uncontroverted Burgh To the second Defense it was answered that Magistrates are lyable for the Debt of Rebels offered to them if they do not put them in Prison or if they suffer them to come out of Prison without Warrand and the Pursuer needs not Dispute that the Prisoner went out by the Magistrates fault and their Contumacy is sufficient in not obeying the Letters by putting him in their publick Prison but keeping him so long in a private House To the third Defense the Pursuer offered him to prove that the Prison was insufficient and that thereby the Rebel did escape The Lords found that seing the Defenders did receive the Rebel upon the Caption they could not now Dispute whether they were lyable to receive or not as being the head Burgh of the Steuartrie and therefore the Lords did not Determine that Point Likewise the Lords found that the keeping of the Rebel ten days before he was Imprisoned there being Treaty in the time and they not urged to put him in the Prison did not oblige them As to the last Point concerning the sufficiency or insufficiency of the Prison the alleadgeances being contrary the Lords would prefer neither Party in the Probation but before answer ordained either Party to adduce Witnesses concerning the condition of the Prison and manner of the Rebels escape Collin Hay contra Magistrates of Elgin Eodem die COllin Hay having pursued the Magistrates of Elgin for a Debt of a Rebel arrested by him in their Tolbooth upon Caption and suffered to escape and the Town having failed in all their Defenses did at last offer to prove that the Execution of the Messenger bearing that he arrested the Prisoner and made intimation of the arrestment to the Magistrates was false whereupon there being three Witnesses insert and one Dead the Messenger and one of the living Witnesses Deponed and acknowledged the arrestment but differed in the manner of it the Execution and the Messengers Oath bear that he came to the Rebel being in Prison and commanded him to remain therein by vertue of the Caption till the Debt were payed the affirming Witnesses Deponed that the Messenger came with the Caption to the Tolbooth Door but that he went not in and does not remember that he knocked at the Door out that he Chalked the Door and commanded the Prisoner to remain but the Witnesses denyed that they remembred any thing of the Intimation to the Magistrates and the other of the â—ing Witnesses denyed that he was Witness to the arrestment or intimation whence the question arose whether the intimation was necessar or though it were improven if the arrestment did stand and were sufficient to oblige the Magistrates who were obliged to have a Jaylor and to keep a Book of arrestments and next whether this arrestment was sufficient not being made to or in presence of the Jaylour It was alleadged for the Defenders that few Towns in Scotland keeped a Record of Incarcerations and here the Magistrates and Clerk had sworn that there was none in that Town at that time neither did the Execution bear that the Jaylour was Comanded to 〈◊〉 the Prisoner and albeit one of the Witnesses Depones that he was Jaylour at that time and the Messenger and other Witnesses depones that he was present at the arrestment yet the Execution bears not any command to him to detain the Prisoner but only to the Prisoner to remain in Prison and the Jaylor is a Witness in the Execution and not a Party and denys the same even that he was so much as Witness by his Oath neither does the Messenger and the affirming Witnesses agree in the Substantials of the arrestment and for the Messenger he is a Party whose Execution is quarrelled and is infamous and Excommunicate for great Crimes It was answered for the Pursuer that the arrestment stood valid and was not improven but approven as to the Substantials requisite thereto for the Messenger and one of the two living
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues â—he Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
Practique produced observed by Dury upon the 1â— of March 1637. betwixt Hume and Hume of Blackadder wherein Compt and Reckoning was Sustained at an appearand Heirs instance the Custom having been ever since contrair upon this Ground that no Party should be troubled to Compt at the Instance of those who when the Compt was closed cannot exoner them and yet may put them to make Litiscontestation and Probation in the Cause Duke of Buccleugh contra Parochioners of Eodem die THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land who alleadged that the Minister having a Gleib before extending at least to two Aikers the Earl upon this Designation had gotten Possession thereof and could only seek Relief for the Superplus It was answered that these two Aikers had never been designed as a Gleib but the Pursuers Predecessors were infeft therein and in Possession thereof before the Ministers and any Possession they had was but by their sufference and conâ—â—vance It was answered that decennalis triennalis possessor non tenesur docere de tâ—â—uâ—o and the Minister was not only in Possession thirteen years but thirty years It was answered that albeit Possession may be a Title yet it may be elided by the Pursuers Right which cannot be taken away but by Prescription whereupon the question arose how the Tollerance or Sufference of the Ministers Possession was probable whether by Witnesses or not seing Tollerances are not ordinarly so proven The Lords found that if the Ministers Possession were alleadged to have been 40. year as belonging to the Kirk that the Dukes Tollerance could only be proven by Writ to elide the same but if for fewer years they found the Tollerance or Sufference probable by Witnesses Mr. Arthur Gordoun contra Laird of Drum Eodem die MR. Arthur Gordoun as Assigney to a Decreet recovered against the Laird of Drum Charges him thereupon He Suspends on this Reason that the Debt being originally due to a Defunct his two Executors nominate recovered the Decreet and the one only assigned the whole to Mr. Arthur whereby he can only have Right to the half It was answered that the other Executor being Dead before the Assignation the Office accresced to the Surviver who might uplift all that was in bonis defuncti not uplifted It was answered that this Debt was no more in bonis defuncti but being established in the Executors Person by Sentence testamentum suit oxecatum and the Deceased Executor's half behoved to belong to their Executors and not to accresce Which the Lords Sustained Lady Ballagan contra Lord Drumlanrig Iune 23. 1671. THe Lady Ballagan being by her Contract of Marriage provided to certain Lands and amongst others to the Lands of Birks the Contract bears that she accepts of the saids Lands in full satisfaction of all further Conjunct-Fee Liferent or Terce she was Infeft in the Lands of Birks by her Husband but was not Confirmed by the Lord Drumlanrig Superiour of whom the Lands held Ward The Lady pursues the Tennents of Birks for Mails and Duties Compearance is made for the Lord Drumlanrig Superiour who craved preference because the Lands are now by Ward in his hands by the Death of the Husband and minority of the Heir And as for the Ladies Infeftment it can have no effect against the Ward because it is not Confirmed It was answered that the Lands being Ward and lesse then the third part of the Ward Lands holden of the Lord Drumlanrig the Lady has Right by Law thereto as her Terce It was answered That by her Contract of Marriage she had accepted the Lands provided therein in satisfaction of her Teroâ— which is the ordinar conception of a Renunciation as when a Sum is accepted in satisfaction of any prior Debt it imports a Renunciation and Discharge of the prior Debt and an Inhibition prior to the last Bond will Reduce any Right thereupon Neither can it be maintained as having an anterior Cause by the former Bonds yea any Appryzing upon them would be void because they are Renunced It was answered for the Lady First That there was here no formal Renunciation or Discharge of the Terce and the acceptance of Lands for it doth very well allow that the Land accepted may be bruiked as Terce at least a Terce of that Land must be due though no Terce of other Lands can be claimed and albeit the Clause in satisfaction in personal Rights is commonly understood to Renunce and extinguish the prior Rights unless they be Reserved Yet it is not so in real Rights for if any person have many Rights to Lands and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest that does not Renunce his former Rights to that Land but he may defend himself with them all So here accepting of Lands in satisfaction of a Terce does not Renunce the Terce as to the Lands accepted 2dly Albeit this Clause could import the Renuncing of all Terce that can never be extended to the benefite of the Superiour nor can it be understood the Contracters mind to exclude the Wife from the Terce to make it accresce to the Superiour in both their prejudices because the Husband by the Warrandice must make out the Joynture 3dly Albeit the Renunciation could be profitable to the Superiour yet it being by this Clause in the Contract the Superiour cannot question the Ladies Infeftment which is the cause of the Renunciation but must adhere to the whole Clause nam qui approbat non reprobat It was answered that the common Sense of this Clause of acceptance does still import a full Renunciation neither can the intention or meaning of the Parties import any thing unlesse they had acted accordingly for it had been easie for them to have said but prejudice of the Terce as to thir Lands so that the Terce being Renunced the Renunciation is profitable to all Parties having Interest because the Right thereby Renunced is simply extinct Neither needs the Superiour approve the Infeftment Un-confirmed by making use of the Renunciation for as there could be no pretence for that upon the naked Clause without any Infeftment so the meaning can only be that if the Clause had been perfected by a valide Infeftment he could not have quarrelled it The Lords preferred the Superiour and found the acceptance a full Renunciation of the Terce both as to the Lands accepted and others Helen Hume contra Lord Iustice Clerk Iune 28. 1671. UMquhile Hume of Rentoun having made several Provisions to his Children and amongst the rest to Helen Hume and having recommended the same to his Son now Justice Clerk he gave a Bond to the said Helen of two thousand Merks payable upon Requisition of fourty days the said Helen pursued Registration of the Bond wherein it being alleadged that any Requisition made was past from by acceptance of Annualrent for Terms after The Lords Assoilzied from that Charge until
tempore otherwise then by his going out to publick Meetings at Kirk and Mercat nor is there any necessity to condescend on the kinds of Diseases which even Physitians themselves and the most skilful can hardly determine And as to the first Defense offering to prove that the Defunct was in Health it is contrare to the Libel and no ways competent for in the case of contrare alleadgeances the Pursuer offering to prove Sickness and the Defender offering to prove Health at the same time the Pursuer as being in the Libel must be preferred especially considering that where such Deeds are procured through importunity from Sick and Weak Persons who would do any thing to get leave to Die in peace the Contrivers by the same facility may debar the accesse of any but such as they have confidence in and who have cuncurred with them in the Contrivance so that the Disponers Sicknesse is difficillimae probationis yet quaelibet probatio sufficit as in this case within a day or two of the Disposition my Lord was put to violent nature to attempt to go to the Mercat and three days after to the Kirk in both which attempts he failed which doth sufficiently presume that he was Sick before and was not able to cover his Sicknesse for a little time to attain the Evidences that Law requires to infer Health but if a contrare probation should be Sustained or preferred as more pregnant and which would be by familiar Persons in the House and concurrers in the Contrivance this ancient and excellent Law would easily be elided and as to the evidences of Health they are no way Relevant neither are any private acts but the Law hath justly determined that the Disponer must appear publickly in the solemnest Meetings that thereby it may be known that he is able to abide the Air and that matters of this importance be not probable by two picked out prepared Witnesses but that the samine be cleared by the whole Witnesses of a Kirk or Mercat which cannot all be Brybed and no few Witnesses dare adventure to Depone against that common knowledge so that no private or domestick acts in or about the House can be equivalent to coming to Kirk and Mercat And as to the second Defense that the Defunct came out to Kirk and Mercat it ought to be Repelled because the pursuer offers to prove that he was supported The Pursuer answered that the Reply was not Relevant unlesse it were condescended quomodo supported and that it was by upholding the Defunct under the Oxter or by the Elbow but it is not Relevant to alleadge that the Defunct took any of the Company by the hand or that they took him by the hand especially if it was in rugged or uneven places in respect of the Defuncts age and that it is offered to be proven that he was ordinarly accustomed to take these who walked with him by the hand in such places and for this there was alleadged a Practique lately done by the Lords betwixt Pargilleis and Pargilleis whereby a Disposition by Pargilleis was Sustained because he came to the Mercat of Calder albeit he was helped to and from his Horse and up and down the Stairs and that he was not able to tell Money and was never at the Kirk thereafter and likewise a Practique in Anno 1647. was alleadged whereby Graham Merchant in Edinburgh having made a Disposition to his Wifes Daughter the same was Sustained because he Lived a long time and did his Affairs in the House and wrote the Disposition being two or three sheet of Paper all with his own hand which is found sufficient though he did not go out to Kirk or Mercat The Pursuer answered that the Reply was most Relevant even though the supporting were only by the hand for albeit where there were reiterat acts of going abroad without design such circumstances would not be noticed yet where the going abroad was so near to the Disposition and evidently done to validate the same it hath been ultimus conatus naturae and hath not been of custom but of necessity so that when such an attempt is made of design if the Disponer have not so much strength as to walk without the help of any hand it infers clearly the weaknesse and continuance of the Disease The Defender repeated his alleadgeance aâ—d offered to prove that not only the Defunct went out to Kirk or Mercat but that he went freely by his own strength no Body touching him The Lords being desirous that neither Party should have the sole probation by picking out such Witnesses as made most for them but that all the Witnesses might be adduced did before answer appoint either Party to adduce Witnesses to instruct the Defuncts condition the time of the Disposition and thereafter and anent the manner of his going abroad and there being a great multitude of Witnesses adduced by either Party the Lords considered the Relevancy and Probation both together by which the Lords found that the Reason of Reduction was relevantly Lybelled and that it was sufficiently proven that the Defunct had contracted the Disease whereof the Died before the Disposition and as to the Defense and Reply the Witnesses proved all clearly that he was supported to the Kirk and from it and that he fell a swoond in his return but the Lords found it not necessare that the Defunct should both go to Kirk and Mercat unsupported but that either was sufficient but that where both was attempted shortly after and upon design the manifest failing in the attempt in going to the Kirk did much weaken the prior attempt in going to the Mercat As to which the Lords did consider that the going free to the Mercat behoved to include the free going to the Mercat place and returning back from the same not being supported in any place of the way so that albeit many Witnesses Deponed the Defunct walked freely none being by him in some parts of the way coming and going there was no number of Witnesses that proved his walking freely all the way coming and going even while he was within the Town but that many Witnesses proved that he was supported some in the whole way and some as to several places some by the Oxter some by the Elbow and most by the hand Therefore the Lords found the Reply Relevant of supporting even by the hand in any place of the way within the Town whether Even or Rugged and found the same sufficiently proven and therefore Reduced the Disposition albeit the Defuncts custom to take those who walked with him by the hand was also proven whereunto they had no regard this going to Mercat being so soon after the Disposition and so evidently of design to validat it and the Defunct never having gone out after except to the Kirk when he was supported and fell a swoond and as to the Practique that in Anno 1647. was not produced but it was in consideration of a Sum left to
Justice Clerk her Brother who alleadged upon the foresaid Clause that the effect thereof must necessarly be that the said Helen should make no voluntare gratuitous Right in prejudice of her Father or his Heirs that the Sum should return if she were not Married It was answered that this Clause not being the ordinar Clause of Substitution Provision or Return cannot be understood a Suspensive Clause hindring the lifting of the Money neither yet a resolutive Clause in case the Pursuer Marry not but it can only have the effect of a Clause of Substitution that if the Pursuer died Un-married and the Sum un-uplifted or Disponed her Fathers Heir is preferred to her own Heir or nearest of Kin for the Term of payment being her age of ten years she might then lift the Sum and there is no provision to reimploy it of this Tenor or to find Caution to Restore if she were not Married It was answered that this Clause cannot be interpreted as a naked Substitution but as a condition of the Bond equivalent to that which is frequent in Provisions of Children and Contracts of Marriage that in case the Party had no Children the sum should return which was always interpret more than a single Substitution and to import a Condition or Obligation against any voluntar Deed or Disposition And though the Party be thereby Feear of the Sum yet it imports a limited Fee with a Provision to do no Deed in the contrair without a Cause onerous and albeit Re-imployment of the sum be not exprest in this Bond it is implyed in the nature of it The Lords found that seing the Bond had a particular Term and no Condition to Re-imploy and the question now was only of voluntar Dispositions without Causes onerous whereof there was none at present existent The Lords Decerned the Sum to be payed to the Pursuer reserving to the Defender his Reason of preference against any Disposition or Assignation without a Cause onerous if the same should happen to be made Iohn Mccrae contra Lord Mcdonald Iuly 6. 1671. JOhn Mccrae as Heir to John Mccrae his Goodsire pursues the Lord Mcdonald as Heir to his Goodsire for payment of a Bond of 400. merks in Anno 1629. granted by the Defenders Goodsire to the Pursuers Goodsire The Defender alleadged absolvitor because the Bond is prescribed The Pursuer replyed that the Prescription was impeded partly by Minority and was interrupted by a Citation at his Instance against the Lord Mcdonald It was answered that the first Citation made was null being at the Mercat Cross of the Shire by Dispensation upon an unwarrantable suggestion that there was not safe access to him which has been past of Course by the Servants of the Bill-Chamber whereas they ought specially to have represented the same and the consideration thereof to the Lords and so being surreptitiously obtained periculo petentis it can import no interruption 2dly The Execution at the Mercat Cross bears no leaving or affixing of a Copy And as for the second Citation it is but one day before the fourty years be compleat which being so small a time is not to be regarded in Prescription nam Lex non spectat minima and it is also null though it be done personally as falling with the first Execution The Lords found that the first Citation was sufficient to interrupt Prescription although it had not been formal through want of a Copy and declared they would sustain the Process thereupon if the leaving of a Copy were added to the Execution subscribed by the Messenger and abidden by as true They found also that the second Citation was sufficient interruption though within a day of compleating the prescription which was to be reckoned punctually de momento in momentum Strachan contra Gordouns Iuly 7. 1671. STrachan pursues Gordouns for a Spuilzie of four Oxen taken away from them by violence being then in their Plough by George and William Gordouns and others The Defenders alleadged absolvitor because they offered them to prove that the Oxon were their proper Goods and were stollen from them and that thereafter they were found straying upon the Pursuers Ground and that they were proclaimed as Waith-goods by the Sheriff and that by the Sheriffs Order direct to his Majors the Defenders intrometted with them and so did no wrong The Pursuer Replyed that no way granting the verity of the Defense the same ought to be Repelled because they having the Oxen in question in their peaceable Possession four Months they ought not to have been disturbed in their Peaceable Possession in this Order without the Citation or Sentence of a Judge So that the Defenders having unwarrantably and violently Dispossessed them spoliatus ante omnia restituendus and they may pursue for Restitution as accords but the Pursuers are not now obliged to Dispute the Point of Right 2dly If need beis they offer to prove that they acquired the Goods from the Laird of Glenkindy their Master so that being Possessors bona fide cum titulo they could not be summarly Spuilzied or Dispossessed For albeit stollen or strayed Goods may be summarly Recovered de recenti or from the Thieves yet cannot so be taken from a lawful Possessor acquiring bona fide The Lords found the Defense Relevant and admitted the same to the Defenders Probation and found also that part of the Reply Relevant that the Pursuers did Possess bona fide by an onerous Title Relevant to elide the Defense though it were proven as to the Restitution of the Oxen to the Pursuer and the ordinar profits thereof but not the violent profits for they found the Sheriffs Warrand being instructed would excuse from the violent profits but they found that the Defenders naked Possession though for four months by having the Goods in the Plough would not infer Restitution or Spuilzie but that the Goods being stollen or strayed might be recovered Summarly Laird of Polmais contra The Tradsmen of Striveling Eodem die THe Tradsmen of Striveling having Charged and troubled the Laird of Polmais Tennents about St. Ninians Kirk upon the Act of Parliament prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows Polmais raised a Declarator for freeing of himself and his Tennents of the saids Charges and that they might freely exercise all their Trades especially about the Kirk of St. Ninians which is about a Mile from Striveling which being Dispute and it condescended upon that St. Ninians being a mile from Striveling could no ways fall under the Act of Parliament and could not be interpret a Suburb being no ways adjacent to the Town The Lords found the Declarator and Condescendence Relevant and Decerned Andrew and Adam Stevins contra Cornelius Neilson Iuly 11. 1671. ANdrew Stevin having made a Disposition of his Lands to Cornelius Neilson his Good-brother and thereafter another Disposition to his Brother Adam Stevin They pursue a Reduction of Cornelius Disposition First As being upon Trust and only for the security
the Letters that ought not to have been granted because Appryzings should only be in the head Burgh of the Shire or in communi patriâ at Edinburgh but especially seing the Warrand was obtained from the Lords of course among the common Bills without being Read or considered and so is periculo petentis and cannot prejudge the more formal Diligence of other Comprizers especially seing Lundy Appryzed of new for the same sums which will come in pari passu with the rest being within year and day It was answered that it is inherent in all Jurisdictions to continue Processes to new Dyets having keeped the first Dyet and that the Messenger by the Letters is Constitute Sheriff and there is no question but Sheriffs might and did prorogate Dyets in Appryzings and the Letters bears Warrand to fix Courts one or more and for the continuation it was but to the next day in regard of a great Speat the Appryzing being upon the hill in the open field the time of Rain and it being mâ—dica mora to the next day which will give no Warrand to an Arbitrary continuation by Messengers to what Interval they please And as for the place The Lords by Dispensation may appoint what place they see convenient and albeit the Dispensation had been of course and that therein the Clerks had failed yet the Parties obtainers of such Dispensations are secure thereby and ought not to be prejudged The Lords Sustained the Appryzing and found the Requisition now produced sufficient and found that the continuing of the Dyet for so short a time to be no ground of nullity unless the Competitors could alleadge a special cause that they did or might alleadged whereby they were prejudged by leading the Appryzing the second day rather than the first The Lords did also Sustain the Dispensation of the place and having perused the Practique produced at the Instance of the Lady Lucia Hamiltoun anent an Appryzing led at Glasgow by Dispensation They found that the Lords did not annul the Appryzing on that Ground But the Lords ordained that no Bill bearing Dispensation should pass of Course in time coming but upon special Reasons to be conâ—idered by the Lords or the Ordinary upon the Bills and that Messengers should not continue the Dyets in Appryzings but upon necessar Causes and ordained an Act to be insert in the Books of Sederunt for that effect Adam Gairns contra Isobel Sandilands Eodem die ADam Gairns pursues Isobel Sandilands as Representing her Father to pay a Debt of his and specially as behaving as Heir by uplifting the Mails and Duties of a Tenement wherein the Father Died Infeft as of Fee in so far as by Contract of Marriage betwixt Thomas Sandilands her Father and Iohn Burn and Isobel Burn his Daughter The said Iohn Burn provided the said Tenement in thir Terms viz. after the Obligements upon the Husbands part it follows thus For the which Cause the said Iohn Burn binds and obliges him to Inseft Thomas Sandilands and the said Isobel Burn the longest liver of them two in Conjunctfee or Liferent and the Heirs between them Which failzying the said Isobel her Heirs and Assigneys whatsomever By which Provision her Father being Feear and Infeft the Defender is lyable The Defender alleadged absolvitor because by this Provision of the Conjunctfee of this Tenement Isobel Burn the Defenders Mother was Feear and her Father was but Liferenter in respect the Termination of the Succession is to the Mothers Heirs yea and to her Assigneys which necessarly imports that she had power to Dispone And it is a general Rule in Succession of Conjunct-Feears that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended especially in this Case where the Right of the Tenement flowes from the Womans Father So that if there were any doubtfulness it must be presumed that the Fathers meaning was to give the Fee to his Daughter having no other Children Neither is this Land Disponed nomine dotis And the Defender stands Infeft by Precept of Favour as Heir to her Mother and thereby bruiks bona fide and her Infeftment must Defend her till it be Reduced The Pursuer answered that by the provision the Husband was Feear and the Wife was only Liferenter because though the last Termination doth ordinarly rule the Fee yet this is as favourable a Rule that in Conjunct Provisions potior est conditio masculi and though the Termination be upon the Wifes Heirs whatsomever yet they are but Heirs of Provision to the Husband and he might have Disponed and his Creditors may affect the Land which holds in all Cases except the Lands had been Disponed by the Wife her self without a Cause onerous But here the Husband is first named and it is but a small parcel of Land beside which there is no other Tocher So that though it be not Disponed nomine dotis Yet being Disponed for the which Causes it is equivalent and in the same Contract the Husband is obliged to provide all Lands that he shall Acquire or succeed to to himself and his Wife the longest liver of them two in Conjunct-fee or Liferent and to the Heirs between them Which failzying the one half to the Husbands Heirs and the other half to the Wifes Heirs and their Assigneys and it cannot be imagined that the meaning of these Clauses was that the Fee of the Mans Conquest and Succession should not be all Constitute in himself but that the Wife should be Feear of the half And in like manner the Fathers meaning is clear because the Clause bears not only in Contemplation of the Marriage but for sums of Money received by the Father which albeit left blank in the Contract yet it cannot be thought that in such a Narrative he intended to make his Daughter Feear And as for the adjection of her Assigneys it is only ex stilo for Assigneys is ever added after the last Termination of Heirs and does always relate to all the Feears and would extend to the Heirs of the Marriage their Assigneys as well as to the Wifes Heirs failing them Likeas Assigneys isin the same way adjected to the Clause of Conquest wherein there is no ground to imagine that the Wife is Feear and both bears the Husband and Wife to be Infeft in Conjunct-fee or Liferent The Lords found that by this Provision and Infeftment thereon the Husband was Feear and the Wife only Liferenter and found no necessity to Reduce the Defenders Infeftment as Heir to her Mother not proceeding upon a Retour but a Precept of Favour But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour but only for making forthcoming her intromission quoad valorem But it was not Debated nor Considered whether as bonae fidei Possessor by a colourable Title being Infeft as Heir to her Mother she would be free of the bygones before this
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
was a personal and peculiar priviledge in favours of the Debitor that he might not unnecessarly be put from his Possession and which he might make use of against all the Appryzers if there were a superplus above the Annualrents and it is upon condition that the Debitor Ratifie the Appryzers Possession which is not competent to a posterior Appryzer in whose favour this Clause was never meaned But there is a special Clause for posterior Appryzers being within year and day to come in pari passu neither can the posterior Appryzers have any interest because the superplus will satisfie the first Appryzing pro tanto The Lords found the foresaid priviledge peculiar to the Debitor but found that the first Appryzer seing he excluded the rest behoved to compt from this time as if he had Possessed the whole The End of the first Part of the Decisions of the Lords of Session AN INDEX Of the Pursuers and Defenders Names for the usual and easier Citing of the Lords Decisions ABercrombie contra Andersons 15 Novemb. 1666 Lord Abercrombie con Lord Newark 17 Decemb. 1667 Achinleck con Mccleud 7 Feb. 1662 Achinleck con L. Wedderburn 16 Ianuary 1663 Achinleck con Williamson and Gillespie 18 Decemb. 1667 K. Advocat con Craw 19 Feb. 1669 K. Advocat con E. of Mortoun 25 Feb. 1669 Agnew con Tennents of Dronlaw 30 Iune 1669 Aikenhead con Aikenhead 25 Feb. 1663 Aikman con 14 Iune 1665 E. Airlie con Mcintosh 8 Iuly 1664 Aitcheson con La. Mccleud 7 Feb. 1662 Aitoun con Watt 26 Iuly 1662 L. Aitoun con Iames Fairie 29 Ianuary 1668 Allan con Paterson 17 Iune 1663 Allan con Colliar 25 Iune 1664 Allan con Fairie 2 Iuly 1667 Capt. Allan con Parkman 9 Iuly 1668 Alexander con L. Clackmannan 9 Iuly 1668 Alexander con Lo. Saltoun 20 Iune 1671 Lo. Almond con Dalmahoy 25 Feb. 1668 Anderson and Elphingstoun con Wachop 22 Iuly 1662 Anderson and Provon con the Town of Edinburgh 31 Ianuary 1665 Anderson con Cunninghame 7 Decemb. 1665 Anderson con Cunninghame 9 Iune 1666 Andrew con Carss 25 Novemb. 1668 E. Annandale con Young and others 24 Feb. 1669 Antrobus con Anderson 13 Iune 1667 L. Aplegirth con Lockerby 14 Feb. 1671 Arbuthnet con Fiddes 25 Feb. 1662 Arbuthnet con Keith 23 Iune 1666 Archbishop and Presbytery of St. Andrews contra George Pittillo 6 Iuly 1670 E. Argile con Mcdowgals 14 Iuly 1665 E. Argile con Campbel 24 Ianuary 1666 E. Argile con Campbels 25 Ianuary 1666 E. Argile con Campbel 15 Ianuary 1668 E. Argile con Stirling 9 Decemb. 1668 E. Argile con Mcnaughtouns 15 Feb. 1671 E. Argile con Vassals 30 June 1669 Armour con Lands 21. Feb. 1671 Arnold of Barncaple con Gordon of Holme 23 Feb. 1671 Arnot con Arnot 11 Ianuary 1665 E. Athole con Scot 20 Decemb. 1664 E. Athole con Robertson of Strowan 19 Ianuary 1669 BAilie con Town of Inuerness 11 Decemb. 1661 Bâ—ilie con Henderson 1 Iuly 1662 Bailie of Regallty of Killimuir con Burgh of Killimuir 14 Ianuary 1668 Bailie con Mr. William Bailie 27 Iuly 1671 Bain con Bailies of Culross 14 Feb. 1671 Bain con L. Striechen 24 Ianuary 1663 Baird con Magistrats of Elgin 25 Ianuary 1665 Baird con Baird 9 Ianuary 1662 D. Balfour and his Spouse con Wood 8 Ianuary 1670 L. Balfour con Mr. William Douglas 4 Iuly 1671 Lady Ballagan con Lo. Drumlanrig 23 Iune 1671 Balmano's Daughter con 〈…〉 the Helr 12 November 1664 Lo. Balmerino con the Town of Edinburgh 25 November 1662 Lo. Balmerino con Creditors of Sir William Dick 14 Iuly 1664 Lo. Balmerino Supplicant 7 Ianuary 1669 Creditors of Balmerino and Cowper Supplicant 16 Feb. 1669 Lo. Balmerino con Hamiltoun of Little-Prestoun 22 Iune 1671 Creditors of Balmerino con Lady Cowper 28 Iune 1671 L. Balnagoun con Dingwall 30 Iuly 1662 L. Balnagoun con Mckenzie 28 Ianuary 1663 Lo. Balvaird con the Creditors of Annandale 21 Ianuary 1662 Barclay con L. Craigivar 10 Ianuary 1662 Barclay con Barclay 6 Iuly 1669 Barclay con Barclay 20 Iuly 1669 Barns con L. Aplegirth 1 Ianuary 1662 Barns con Young 12 Decemb. 1665 Baxters of Edinburgh con the Heretors of East-Lothian 20 Feb. 1663 Baxters in Cannongate 21 Novemb. 1665 Bead-men of the Magdalen Chappel con Drysdale 30 Iune 1671 Beatoun of Bandoch con Ogilvie of Mantoun 13 Iuly 1670 E. Bedford con Lo. Balmerino 18 Feb. 1662 E. Bedford con L. Balmerino 29 Novemb. 1661 Beg con Nicolson 14 Ianuary 1663 Beg con Beg 4 Feb. 1665 Beg con Beâ— 5 Decemb. 1665 Beg con Nicol 22 Iune 1666 Bells con Wilkie 12 Feb 1662 Bell of Belford con the Lady Rutherford 27 Ianuary 1669 Lairds of Beerfoord and Beanstoun con Lo. Kingstouâ— 27 Ianuary 1665 Mayor of Berwick con L. of Haining 1 Iuly 1661 Major Bigger con Cunninghame of Dâ—nkeith 15 Iuly 1670 Binning con Binning 28 Ianuary 1668 Birkinbeg con Iohn Graham of Craigit 20 Iuly 1671 Birnie con Henderson 18 Ianuary 1668 Birsbane con Monteith 24 Iuly 1662 Birsh con Dowglas 18 Feb. 1663 Bâ—shop of Isles con Hamiltoun 13 Decemb. 1664 Bishop of Dumblaine con E. Cassils 15 February 1665 Bâ—shop of Isles con the Fishers of Greenock 24 Novemb. 1665 Arch-Bishop of Glasgow con Mr. Iames Logan 6. Feb. 1666 Archâ—-Bishop of Glasgow con Commissar of Glasgow 14 Feb. 1666 Bishop of Glasgow con Commissar of Glasgow 22 Feb. 1666 Black con Scot 25 Iune 1668 Black con French 9 Feb. 1669 Blaikwood con Purves 20 Novemb. 1666 Blair con Anderson 18 Feb. 1663 Blair of Balgillo con Blâ—ir of Denhead 3 February 1671 Blair of Balhead con Blair of Denhead 22 Iuly 1671 Lo. Blanâ—yre con Walkinshâ—w 2 Iuly 1667 Blomart con E. Roxburgh 17 Decemb. 1664 Bones con Barclay of Iohnstoun 9 Iuly 1662 Bonnar con Foulis 7 Feb. 1662 Capt. Bood con Strachan 28 Novemb. 1667 Boog con Davidson 9 Iuly 1668 Lo. Borthwick con Mr. Mark Ker 31 Ianuary 1665 Borthwick con Skeen 14 Iuly 1665 Borthwick con Skâ—en 16 Feb. 1666 Lo Borâ—hwick con 21 Feb. 1666 Borthwick con Lo. Borthwick 14 Feb. 1668 Boswel con Boswel 22 Novemb. 1661 Boswel con the Town of Kirkaldy 22 Iuly 1668 Boswel con the Town of Kirkaldy 1 Feb. 1669 Boswel con Lindsey 3 Feb. 1669 Bow con Campbel 2 Iuly 1669 Bowers con Lady Cowper 16 Iune 1671 Boyd con L. Nithrie and L. of Edmondstoun 13 Decemb 1661 Boyd of Pinkill con Tennents of Carsluth 15 Feb. 1666 Boyd con Kintore 4 Iuly 1665 Boyd con Lauder and Telziefer 30 Novem. 1665 Boyds con Boyd of Temple 6 Ianuary 1670 Iohn Boyd con Heâ—gh Sinclar 17 Iune 1671 Boyl of Keâ—hâ—rn con Wilkie 26 January 1669 Lady Braid con E. Kinghorn 26 Ianuary 1669 Bradie con L. of Fairnie Iune 21. 1665 Bradie con L. Fairnie 20 Ianuary 1666 Bredy con Bredy 1 Iuly 1662 Broady of Lethem and L. of Rickartoun con Lo. Kenmure 1. Iuly 1671 Brotherstons con Ogil â—â—d Orrocks 26 Iuly 1665 Broun con Lâ—ferenters of Rossie 13 Feb. 1662 Broun con Iohnstoun 26 Feb. 1662 Broun con Laâ—sons 25 Iune
the Ground whereby they would be preferred to the Appryzing Iuly 8. 1671. Margaret Scrymzour contra Earl of Northesk By this Decision the Accumulation of Annualrents by the voluntar Disposition was Evacuate DECLARATOR of the expyring of a Reversion upon a clause irritant was found null summarly without Reduction in respect the Decreet bear not the Production of the Instrument of Requisition whereupon the irritancy fell although the Instrument was now produced and the party long in Possession by vertue of the Decreet and albeit the Requisition was expresly libelled upon and that it seemed to be the Clerks omission in not mentioning of it in the production February 22. 1671. Piâ—cairn contra Tennents DECLARATOR OF ESCHEAT was sustained without calling all parties having interest at the Mercat Cross though it was a part of the Style of the Summons in desuetude Iune 23. 1666. Masson contra DECLARATOR OF WARD AND NONEENTRIE should only be pursued before the Lords of Session not before the Exchequer Iune 14. 1665. His Majesties Letter Recorded in the Books of Sederunt DECLARATOR OF THE NVLLITIE of Bonds and Rights to Creditors by a Feear in a Tailzie with a clause de non aliâ—nando was Sustained without the form of a Reduction or Production of the particular Rights Ianuary 21. 1662. Viscount of Stormount contra creditors of Annandale In a Declarator of Property the Defender was not admitted to propone a Nullity in the Pursuers Right or that certification was granted against his Authors Seasine even at the Defenders instance unless the Defender alleadge a better Right Iuly 10. 1662. Lord Frazer contra Laird of Phillorth A DECREET of Removing for not finding caution in absence was found null by Exception in respect the Title Libelled on was not produced but the Infeftment of another Person of the same name fraudfully mentioned in the production so that it was not Sustained as titulus bonafides to give the Possessor the Fruits Iune 21. 1671. Neilson contra Menzeis of Enoch A Decreet being stopped on a Bill was found not to be recalled but only the Extracting thereof to be forborn till the Party were heard on the Grounds of the Bill and that though it lay over several years it needed not wakening Iuly 1. 1671. Broadie of Lethem and the Laird of Riccartoun contra Lord Kenmure A DECREET ARBITRAL was found null as not being within a year of the Submission though it had no time but a power to the Arbiters to meet at their convenience and prorogat but did not prorogat the same February 24. 1665. Mcgregor contra Menzeis A Decreet Arbitral was sustained without Submission in Writ it being proven by the Parties Oath that he so submitted and by the Arbiters Oath that they so decerned though both the Submission and Decreet were only verbal the matter being but of 200. merks February 7. 1671. Hume contra Scot. Here the matter was a Bond of 550. merks Suspended and determined to 200. merks DECREETS OF INFERIOVR COVRTS were found not to be taken away upon Iniquity though it be instantly verified by the Decreet by way of Suspension without Reduction Ianuary 24. 1662. Ker contra Lord Rentoun A Decreet of an Inferiour Court was not Reduced simply because Advocation was produced before Extracting being after Sentence but was Reduced because the Advocation was produced before eleven hours which was the ordinary hour of beginning to sit but the Sheriff sat that day an hour before ordinary which the Lords found sufficient presumption that it was of purpose to prevent the Advocation Iuly 10. 1662. Laird of Lambertoun contra Hume of Kaimes A Decreâ—et of an inferiour Court was not Sustained as in â—oro where a Term was taken by a Procurator to prove a Defense without a Mandat or Writ produced that might inâ—er the same November 24. 1665. Chalmers contra Lady Tinnel A Decreet of an inferiour Court was found null for want of Probation bearing only that the Defender compeared and conâ—essed the debt without proponing any other alleadgeance or deâ—ense and not Subscribing his acknowledgement Iuly 19. 1665. Guine contra Mcken A Decreet of an inferiour Court upon compearance was not found null by Suspension without Reduction though it had visible Nullities and was a small matter Inter pauperes November 21. 1665. Baxters in the Cannongate contra A DECREET OF SESSION was Reduced as null being ultra petita Iuly 21. 1666. Waison contra Miller A Decreet of Session in foro whereby in a Suspension a sum being alleadged paid not instantly verified the Letters were found orderly proceeded conditionally if any thing were produced by such a time it should be received and was not produced after which the Lords would not admit it being now produced in a Reduction of an Appryzing of the said Decreet now in the hands of a singular Successor Iune 16. 1664. Laird of Tillieallan and Condie contra Crawfoord A DECREET OF PARLIAMENT was taken away by double poynding without a Reduction the same being referred to the Lords by the Parliament upon Supplication on this Reason that it was pronunced against a Forefault person alter his death without calling the Kings Officers Iuly 14. 1665. Earl of Argile contra Mcdâ—wgal of Dinolich and Raca A Decreet of Parliament Rescinding a dishabilitation of the Children of Forefault Persons without Citation was Sustained there being no Citation of the Children to the Dishabilitation nor Restitution by way of Grace but in Iustice the Children being Infants incapable of the Crime February 24. 1665. Sir Robert Sinclar contra the Laird of Wedderbâ—rn DELIVERY Vide Chyrographum December 13. 1666. â—â—net Thomson contra Stevinson Delivery of an Assignation was not found necessary to validate the same being granted by a Defunct to his near Relation though not in his Family though it bear not a Clause to be valide without delivery seing it bear a Reservation of his Liferent and a power to dispose evidencing his purpuse not to deliver the same and so importing the Writ to be valide without delivery Delivery of three Dispositions in Tailzie to a Daughters Son was found to be implyed by a Clause in the first dispensing with delivery and seing the Substantials of the rest were the same with the first and only qualified the same conform to the reserved power in the first they were all Sustained though the other two had no dispensatory Clause but so that what was in the first for the benefite of the Heir should be holden as repeated in the rest that by the rest the Heir might not be in a worse case Iuly 23. 1669. Elleâ—s contra Inglesâ—â—â—n Delivery of Bonds of provision to Children is not presumed to have been at or near the date but must be proven to prefer them to posterior Creditors Iuly 22. 1668. Iohnstoun of Shâ—ins contra Arnot DEPOSITATION of a Writ was found probable by the Notar and Witnesses insert where the Writ was not produced by the Party in whose favours it was principally
Roxburgh DONATAR of Forefaulture obtaining Decreet of Parliament upon fewer dayes citation then are required by Law Reducing an Infeftment on this Ground that it is holden of the Forefault person base un-confirmed and so excluded by the Forefaulture and not upon the five years possession of the Forefault person as heretable Possessor The Lords Sustained the Decreet February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore A Donatar of single Escheat though excluded by the diligence of the Creditors of the Rebel before declarator upon debts before Rebellion was found not to extend to prefer an appryzing of a Wifes Liferent led against her Husband as having right thereto jure mariti in prejudice of the Donatar of the Husbands single Escheat though the Appryzing was before Declarator for a debt before Rebellion seing the Liferent had tractum futuri temporis and is not as Moveable Sums Iuly 18. 1668. Earl of Dumfreis contra Smart DOVBLE POINDING being raised in Name of Tennents by one of the Parties competing the same was sustained though the Tennents did disclaim the same and that the other party was their present Master his possession being but of late and controverted it was also sustained though there was no particular duties libelled but in general to be answered of the Mails and Duties as is ordinary in Decreets conform Iuly 14. 1665. Earl of Argile contra Dinloch and Rara A Double poynding calling two Ministers and preferring one the other being absent was found not irreduceablâ— by the Act of Parliament anent double poindings seing the Decreet was only general without expressing the Teinds in question and so was only found valide as to what was uplifted but not in time coming without having a Right Iune 15. 1667. Gray contra IN DVBIISâ— interpretatio facienda contra proferentem qui poâ—uit sibi legeâ—â— dixisse clarius Iuly 29. 1665. Dowglas contra Cowan EIECTION vide Clause in a Tack December 19. 1661. Dewar contra Countess of Murray Ejection was not sustained at the Instance of an Heretor by the Tennents ceding the Possession to a Stranger seing the Tennent pursued not and that Tennent was not in natural possession but both were to compet for the duties that party having given an obligement to cede his Right December 21. 1661. Montgomry contra Lady Kirkcudbright Ejection at the instance of Heirs infants who had an old Infeftment but were not Infeft themselves was Sustained for re-possessing albeit the Defender obtained Decreet of removing against their Mother and entered thereby though the Decreet bear to remove her self â—airns Servants c. The Pursuer being then in her Family February 19. 1665. Scots contra Earl of Hume Ejection was sustained upon putting the Pursuer out of his House and Land Naturally possessed by him though the Ejecter obtained Improbation against the Pursuer and thereupon Removing seing he entered not legally by Letters of Possession But this was not extended to the Lands possest by Tennents who were induced to take Right from the Ejecter to give violent profits of these Lands Iuly 25. 1668. Campbel contra Laird of Glenureâ—y ERECTION granted by the King erecting Kirk lands into a Temporal Lordship was found not to be habilis modus while the same was not vacant but in the hands of a Commendator albeit he was dishabilitat to brook any Estate by his Fathers Forefaâ—ture at the time of the erection seing his dishabilitation was thereafter rescinded in Parliament because he was no ways accessory to his Fathers crime whereupon his Temporal Provision was validate and the erection medio tâ—mpore was postponed to a posterior erection to the Commendator himself upon his own dimission February 24 1666. Sinclar contra Laird of Wedderburn ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands which was found moveable quo ad fiscum albeit it came in the place of the Right Heretable which would have belonged to the Heir February 4. 1663. Laird of Philorth contra Lord Frazer An Escheat gifted by the King was excluded by a Creditor who arrested during the Rebels life and pursued to make forthcoming after his death he having none to represent him in mobilibus dying at the Horn and so needed no Decreet establishing the debt in one representing the Defunct and calling the Representatives in the action for making forthcoming albeit the Arrestment was laid on after the Rebellion but before declarator and for a debt contracted before the Rebellion February 19. 1667. Glen contra Hume Escheat was found to carry a Bond bearing annualrent the Rebellion â—alling before the first Term of payment of the annualrent Iune 26. 1666. Dick contra Ker. Vide Donator of Escheat Escheat was not burdened with debts contracted after Rebellion February 24. 1669. Countes of Dundâ—e contra Straâ—town Vide Gift of Escheat AN EXECVTOR pursuing a debitor of the Defuncts was not excluded by Compensation because that debitor had taken Assignation from the Defuncts Creditor after the Defuncts death seing thereby the Defuncts debitor might prefer one of the Defuncts Creditors to another which neither a Debitor nor Executor can do but according to their diligence February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun In a Competition of Executry of Defuncts amongst their Creditors all who do diligence within six Moneths of the defuncts death by Confirming themselves Executors Creditors or intenting any Action against the Executor or Intromettor should come in pari passu by Act of Sederunt February 28. 1662. An Executor was found lyable to pay a Creditor of the defuncts albeit it was the price of Land sold to the defunct by a Minute without restricting the debitor to the Heir who would only get the disposition or causing the Creditor dispone the Land to the Executor in lieu of the Moveables but reserving to the Executor to seek relief of the Heir as accords Iuly 1. 1662. Baillie contra Hendrison Executors were found lyable for an Annual payment for years after the defuncts death February 5. 1663. Hill contra Maxwel In the Executry a Child dying before Confirmation of the Mothers third the Father being alive was found not to transmit to the Father as nearest Agâ—at but to the Mothers brother and that it was not in the case of the Legitim from a Father which is Transmissible without any Confirmation or adition to the Succession February 17. 1663. Forsyth contra Paâ—oun Executry was found bipartite where there was but one Child which was Forisfamiliat and provided without alleadging in satisfaction of the Bairns part seing here the Child offered not to confer February 18. 1663. Dumbar of Hemprigs contra Frazer An Executors proper Creditor competing with a Creditor of the Defuncts both on Arrestments of a part of the Defuncts Inventary the Defuncts Creditor was preferred to the Executors doing more diligence especially before this Sum was established in the Executors person by Decreet Iuly 8. 1664. Veâ—ch contra Lord
Ley. An Executor was not liberat by a decreet of exoneration as to the Creditors not called who needed not reduce the same neither yet by exhausting by payment of lawful debts instructed by Writ before intenting of the Pursuers Cause unless sentence had been first obtained against the Executor who cannot prefer one Creditor to another but according to their diligence November 11. 1664. Iohustoun contra Lady Kincaid An Executor ad non executa was found to have no place where the former Executor had obtained Sentence albeit no payment and albeit he was Executoâ— dative and a meeâ— Stranger November 7. 1666. Down contra Young An Executor was found obliged to depone upon the kinds quantities and prices of the Goods in the Inventary at the instance of an Executor ad omissa Notwithstanding of the Oath given by the Executor at the Confirmation Iuly 18. 1667. Ker contra Ker. The Executor of a donator of Liferent was found to have right to the bygones of that Liferent before the donatars death and that the donatars Heir had only right to the Liferent after the donatars death albeit there was no declarator establishing the Liferent in the donatars person before his death Ianuary 28. 1671. Kiry contra Nicolson Executors having obtained decreet for the defuncts debt the Testament is thereby execute although they have not obtained payment and after the death of one of them the decreet doth not accresce with the Office to the other but the one half belongs to the executors of the deceast Executor Iune 22. 1671. Gordoun contra Laird of Drum CO-EXECVTORS being Confirmed one dying the Office accresceth to the rest and all benefit that follows thereon but the defunct executor being nearest of kin his part as nearest of kin is Transmitted to that Executors nearest of kin and does not belong to the surviving Executors February 12. 1662. â—ells contra Wilkâ—e Co Executors after obtaining Sentence may pursue for their shares severally without concourse or calling the rest Ianuary 25. 1665. Menzeis contra Laird of Drum EXECVTORS CREDITORS were not excluded by the defunct debitors alleadging compensation upon an Assignation to a debt due by the defunct albeit anterior to the Confirmation or diligence yet posterior to the defuncts deceass whereby one Creditor is preferred to another which cannot be done either by the Executor or by the Debitor but according to their diligence February 8. 1662. Crawfoord contra Earl of Murray An Executor Creditor was not found lyable for diligence where the confirmation was questionable whether it was by a competent Commissar or not December 10. 1664. Goldsmiths of Edinburgh contra Haliburtoun An Executor creditor long since confirmed was found lyable for no diligence to other creditors but to assign them next to their own payment And as to the future The Lords resolved to consider the Motives on both hands and make an Act of Sederunt thereanent Iuly 18. 1671. Harlaw contra Hume EXECVTIONS of arrestment or the like on the Sabbath day are null by Exception as was found February 1â— 1663. Oliphant contra Dowglas of Dornoch In Executions giving of a coâ—y was found an essential requisite and in Executions requiring Registration that the same must be exprest in the Execution Registrate else the same is null although it be added ex post facto by the Messenger and offered to be proven to be true Iuly 28. 1671. Keith contra Iohnstoun EXCEPTIONS which do not acknowledge the Libel do not free the Pursuer from proving of the Libel but both parties must prove hinc indâ— Iuly 24. 1661. Mitchel contra Hutcheson The Exception of the Pursuers lossing the Plea by beating the defender in the Session-House was Sustained without necessity to alleadge effusion of Blood but the Lords determined not whether they would admit the probation of the Fact before themselves or assign a long Term that the defender might insist criminally before the Iustices that it being there cognoâ—ced it might be here repeated in termino Iuly 29. 1692. Harper contra Hamiltoun An Exception being proponed without denying the Libel or quantities therein the Defender succumbing in probation the Libel was holden as acknowledged and proven albeit the Exception of its own Nature did not acknowledge the same but it was recommended to the parties to accord December 13. 1664. Lord Rollo contra his Chamberlane EXHIBITION of defuncts Writs by his Heir was sustained not only for such as belonged to the defunct but for such also as were in his Possession at his death Ianuary 10. 1665. Reid contra Reid Exhibition of Writs which the Defender before intenting of the cause had and fraâ—dâ—ully put away was sustained by Witnesses to prove the having in respect of the defenders fraud in indeavouring to transvert the Right yet not thereupon simply to decern to Exhibite but only unless the defender refuâ—e to tell quo modo desâ—â—t possidere Iuly 14. 1666. Fountain and Brown contra Maxwel of Nethergate Exhibition of an Assignation out of the granters hands was found not probable by Witnesses albeit the granter was alleadged to have received it as Agent for the Pursuer December 14. 1666. Fairly contra Creditors of Dick. Exhibition of compt Books being craved in a compt betwixt the Successors of two brethren not to instruct but to make up the charge in respect of their near interest and commerce and that they were co-partners the Books were ordained to be put in the Auditors hands and if thereby co-partnery appeared or trust as Factor for others they should be exhibite to the other party to frame his accompts by otherwayes to be given back and not to be seen by the pursuer Iuly 7. 1668. Kelict of Patoun contra Relict of Patoun EXHIBITION AD DELIBERANDVM was sustained for all Writs wherein there was any clause in favours of the Pursuers Predecessors and for Writs made by him to persons in his Family Wife Children and Servants on which no Infeftment followed December 6. 1661. Telzifer contra Forrester and Scâ—aw of Sornbeg The like November 12. 1664. Galbraith contra EXTRACT of a Bond Registrate was found not to Instruct the debt against the Heir of a party whom the extract bear to have subscribed it but only against the consenters to the Registration The like unless it were instructed that the Defenders Predecessor truely subscribed the Writ February 7. 1662. Aâ—cheson contra Earl of Errol Here Witnesses ex officio were admitted to instruct by way of Reply Extract of a Bond Registrate against a party living consenting by the Procuratory was found not to instruct or prove against those who consented not unless other Adminicles to astruct the â—â—uth thereof were adduced Iune 24. 1664. Hay Tailzeor contra Hume of Blackburn A FATHER as Tutor of Law was found lyable to pursue for the Annualrent of his Childs Mothers third of moveables February 4. 1665. Beg contra Beg. A Father was â—ound lyable to receive his Son in his Family and to entertain him as
to be ignorant of the Terms of her Infeftment November 14. 1665. Skeen and her Spouse contra Ramsay Homologation of an Infeftment bearing in satisfaction c. was sound not to be inferred by possessing the Lands seing the Possessor had another Title as Heir apparent to persons who dyed Infeft therein unless it were instructed that the possession was attained by Processe upon the Infeftment in satisfaction December 12. 1665. Barns contra Young and her Spouse Homologation of a Feuars Right and passing from a Declarator against the same upon a clause irritant was found not to be inferred by acceptance of two years Feu-duties after the Declarator except as to these two years that more duty could not be demanded therefore Iune 6. 1666 Earl of Cassils contra Agnew Homologation of a Bond granted by a Minor without consent of his Father as lawful Administrator was found not inferred by payment of Annualrent by him after his Majority especially not being of his own Money nor by taking a Discharge of the Annualrent to the Principal and himself as Cautioner February 14. 1668. Mckenzie contra Fairholm Here the Discharge related the Bond both as to Principal and Cautioner Homologation of a Minors Bond was not inferred by pursuing for his relief after his Majority but that in case he were not liberate by that mean he might return to his Reduction upon Minority February 20. 1668. Farquhar of Toâ—ley contra Gordoun Homologation of a Tack of Teinds which was null as wanting the consent of the Patron was not found inferred by the Ministers receiving the duty conform to the Tack before Reduction thereof February 27. 1668. Chalmers contra Wood of Balbegno Homologation of a Decreet was not inferred by giving Bond of borrowed Money for the like sum and taking a Discharge of the Decreet seing it was no voluntary deed but the Debitor was then under Caption in the Messengers hands upon the Decreet neither a Transaction if the Bond contained all the sum in the Decreet unless abatement had been gotten Iuly 3. 1668. Row contra Hoâ—stoun Homologation was not inferred by a Husbands Discharge of Annualrent as Tutor to his Wifes Child to infer the Child had right to the Annualrent whereas by the Bond it self the Wife was Liferenter Ianuary 18. 1670. Doctor Balfour and his Spouse contra Wood. Homologation of a Decreet of consent containing a Transaction of parties at the Bar without any Subscription was inferred by a simple offer of a Disposition conform to the said Transaction be that party who quarrelled the Decreet as without Warrand but was not inferred by consignation of the Disposition for obtaining a Suspension upon obedience to be delivered up if the Lords saw cause February 4. 1671. Lowrie contra Gibson Homologation of a Contract of a Minor having Curators without their consent was not inferred by payment of a years Annualrent of the sum contained in the Contract being made â—o an indigent Sister who had no other provision but homologation was inferred by a Decreet of Registration of the Contract at the instance of the Party none quarrelling the same after his Majority though there was neither Charge nor Execution used thereon and in the Decreet of Registration there was neither Protestation nor Reservation that the same might be quarrelled in any point Iune 2â— 1671 Hume contra Lord Iustice Clerk Homologation of a Testament subscribed by a Wife at the desire of her Husband near his death was not inâ—erred by her Confirming the Testament under Protestation not to prejudge her own Right though she might have attained her interest in the Moveables by Confirming her self Executrix Creditrix Iuly 12. 1671. Murray contra Murray HORNING granted Summarly upon the late Iudges Act at the instance of heirs or Executors confirmed was found to be â—ull upon the late Act of Parliament declaring their ludiâ—â—â—â— proceedings to be quarrellable seing thereâ— was no â—â—justice in the matter but the Lords gave the Suspenders such time for their Defenses as in an ordinary Action Ianuary 1. 1662. Barnes contra Laird of Applegirth Horning doth not affect the Rebels Moveables by the Act 1592 but that the Rebel may effectually deliver them to one who had Disposition of them before the horning Iuly 9. 1662. Bower contra Barclay and Iohnstoun Horning was not found null by payment before denunciation to be proven by the Creditors Oath or holograph Discharges but by the Denuncers Oath of Verity February 10. 1663. Montgomery contra Montgomery and Lawder Horning granted against the Magisâ—rates of a Town upon the Act of their Council obliging to pay a Debt upon a Bill without Signet though there was no Process whereon the Act proceeded or Clause of Registration therein February 19. 1663. Lady Swintoun contra Magistrates oâ— Edinburgh Horning was sustained though on a Charge of six dayes beyond Dee contrary to the Act of Parliament 1580. â—n respecâ— it proceeded on consent of parties upon a clause of Registration and since that Act such hornings had never been quarrelled December 16. 1664. Laird of Phillorth contra Forbâ—s of Asâ—oun and the Lord Frazer A HVSBAND was found lyable to his Wifes debt though not established against him during the Marriage in so far as might be extended to the benefite of her Lifâ—rent Duty resting after the Marriage dissolved which could not belong to the Husband but with the burden of her debt February 1. 1662. Cunninghame contra Dalmahoy A Husband was found lyable for his interest in Moveables intrometted with by his Wife of her first Husbands albeit there was an interveening Husband who was not found to be first discust but reserving to the Defender to pursue his heirs as accords February 18. 1663. Dumbar or Hemprigs contra Lord Frazer Vide interdiction February 27. 1663. Laird of Milntoun contra Lady Milntoun A Husband was assoilzied from his Wifes debt albeit Litiscontestation was past seing she was dead and albeit there was an Interlocutor ordaining him to give Bond to pay what his Lady should be found due Iuly 11. 1664. Inter eosdem A Husband being pursued to remove from a Tenement which he possessed jure marâ—ti no Process was sustained till the Wife was cited Iuly 14. 1665. Iohnstoun of Sheeâ—s contra Brown A Husband Confirming his Wifes Testament by giving up his own Moveables and Debt though he made Faith upon the Inventary yet was not excluded from debarring the Wifes Legatars upon another debt then forgotten though not old December 7. 1665. Anderson contra Cunninghame But he being lately charged on a debt before the confirmation it was not allowed as forgotten Iune 5. 1666. Inter eosdem A Husbane was not found lyable for his Wifes debt jure Mariti after her death though in her life there was Decreet against her and him as Husband seing there was no Execution thereon in her life December 23. 1665. Dam Rachel Burnet contra Lepers A Husband and Wife were not found lyable as lucrative Successors for a competent Tocher
his Estate that she might not be abused in her Marriage by her Mother or her Freinds the same was sustained after the Pupils age of eleven years though the Mother was unmarried and the Daughter valiâ—udinary February 6. 1666. Laird of Dury contra Lady Dury A Tutor was found to have a year to imploy sums not bearing annualrent and not to be obliged to uplift sums where the Pupil was fully secured or where on a sudden the Debitor break but was found lyable for all Diligence according to the Debitors condition by Horning Caption Arrestment Poinding and Appryzing of the Debitors Estate which should be known to him and not for Horning only Iuly 9. 1667. Steâ—in contra Boyd In a Tutor compt the Tutor was not found lyable for the Services he got to the Pupils Tennents in kind and that where he was super-expended a Decreet might be at his instance against the Pupil on the Pupils own Process Ianuary 11 1668. Grant contra Grant A Tutor was found lyable to compt as Tutor and not as Pro-Tutor on production of a Writ under his hand designing himself and acting as Tutor Testamentar without necessity to the Pursuer to produce the Testament December 2. 1668. Sâ—atoun contra Sâ—atoun A Tutor was found lyable for the Annualrent of his Pupils sums which were in responsal Debitors hands but not to re-imploy the same upon annualrent in respect the Tutor dyed durante tutela and that what annualrents he had received his Successors were only lyable for the same and the annualrent thereof from the time the Pupil past pupillarity it being sufficient to lift and imploy the annualrents of Pupils sums at any time during the ordinary course of the Tutory afâ—er the Pupils passing pupillarity Iuly 9 1669. Kintor contra the Heirs and Successors of Logan of Coatfiâ—ld This was stopped on the Purâ—uers Bill till it were furder heard upon the grounds of the first Decision A Tutor having cited his Pupils Friends on both sides that â—t might be declared by the Lords that the Pupils Lands were â—racked above the true value and that they wâ—re not able to pay their Rents without casting the Land waste no party appearing the Process being considered by the Lords they granted Commission to Gentlemen in the Countrey to try the matter of Fact and report February 5. 1670. Tutor of colzâ—an contra nearest of kin of the Pupil A Tutory granted to two and bearing them to be joyntly was found void by the death of either Ianuary 17. 1671. Drummond of Riccartoun contra Feuars of Bothkenneth TVTOR DATIVE of a furious person was found not to exclude the nearest Agnat as Tutor of Law to be served quandocunque though the Idiot was necessitate to pay upon the Tutors citation to make forthcoming Ianuary 21. 1663. Mr. Iames Steuart and Robert his Tutor Dative contra Spreul Vâ—â—â—MUS HAERES being gifted was found to have no effect till there be be a declarator thereupon in the same way as in Bastardy Iuly 30. 1662. Laird of Balnagoun contra Dingwall The like Iuly 31. 1666. Crawfoord contra Town of Edinb VSE OF PAYMENT of a duty to a Minister for Teinds and his discharge for the whole Teinds for a long time was found sufficient against him who had the Tack and Prorogation of these Teinds until interruption by Citation or Inhibition thogh the duty was very smal the Minister was but stipendiaâ— having that quantity allocat out of these Teinds Ianuary 19. 1669. Earl of Athol coâ—tra Robertson of Strowan VSVRY was not inferred by a Creditors taking a Tack for his furder security for so much Victual or 20. shilling less than the 〈◊〉 at the setters option that abatement being for the setters pains and hazard in getting in the price November 23. 1664. Scot contra Laird of Barefoord VICCARAGE was not found due out of Yeards which were aparâ— of the Chanons Portions which had never paid Viccarage Iune 30. 1668. Minister of Elgin contra his Paâ—ochioners THE VIOLENT PROFITES of an Ox Spâ—ilzied in Labouring time was found to be 5. shilling every day during the Labouring time February 28. 1668. Lord Iustice Cleâ—k contra Hume of Linthil VITIATION of a Contract of Marriage diminishing the Tocher and Ioyntuâ—e by the Husband and Father after the marriage was found not to prejudge the Wife who consented not but her Right was extended as before the Vitiation in prejudice of the Husbands Creditors infeft by him albeit the Contract being Registrate the Viâ—â—ation could not not appear to the Creditors when they lent their Money Iune 11. 1670. Hunter contra The Creditors of Peter VITIOVS INTROMISSION was not â—lided because the Defunct dyed Rebel at the Horn and so there was nothing in bonis defuncti unless the Defender alleadged he had the gift of Escheat ante motam litem February 17. 1662. Gray contra Dalgarno Vitious Intromission was retrinched to single avail because the Defender entered in possession by a disposition of the moveables though no delivery or possession was in the Defuncts life February 27. 1662. Chalmers contra Dalgaâ—no Vitious Intromission was purged by the Intrometters confirming within year and day after the Defuncts death the Executry being his Wifes albeit after intenting of the pursuers cause Ianuary 28. 1663. Stevinson contra Ker and others Vitious Intromission was purged by a Disposition and Instrument of Possession in the Disponers Lifetime though the Defender judicially acknowledged there was no natural possession Iuly 6. 1664. Brown contra Lawson Vitious Intromission was not sustained after the Intrometters death against any representing him where there was nothing done to instruct it in his Life further than Quo ad valâ—rem but not as an universal passive Title Iuly 10. 1666. Cranstoun contra Wilkison Vitious Intromission was elided because the Intrometter had warrand from the Donator of the Defuncts Escheat thogh there was no Declarator seing the Warrand and Intromission was ante notam litem Iuly 4. 1665. Innes contra Watson Vitious Intromission was not inferred by intrometting with 50. pound the Intrometter having after his Intromission confirmed himself Executor and omited that sum but was only found lyable for the sum it self February 26. 1668. Râ—oth contra Cowan Vitious Intromission was found not receivable by Defense against an Assignay viz. That the Cedent who was Creditor to a Defunct was vitious Intrometter with his goods and so Debitor the Assignation being for an onerous cause Ianuary 20. 1671. Captain Ramsoy contra Henrison WARD was found not to fall by the death of an Appryzer who had Charged unless he had put the Superiour in culpa by preseâ—ting a Charter to be subscribed by him and offering a Sum with a Bond and Caution for what more the Lords should modifie for that years Rent and that therefore the Ward fell by the death of him against whom the appryzing was led February 9. 1669. Black contra French Ward being gifted by the King the Donatâ—r was found to have
was reduced upon that Sentence as posterior and prejudicial to the bargain Ianuary 21. 1669. Creditors of Pollock contra Pollock Witnesses were admitted to prove a Merchant compt as to Articles more then three years preceeding the Citation it being a curâ—ent accompt though begun by the Defunct and continued afâ—er hâ—â— deceass by his Funeral provision and by the Chamberâ—â—â—â— of his Heir then a Pupil seing three years intervâ—eâ—ed not in any part of the accompt February 26. 1670. Grahame contra Laird of Stanâ—byres Witnesses were admitted to prove the vâ—â—iation of a Contract of Marriage and not to annul it but to extend it as it was before the viâ—iation Iune 11. 1670. Hunter contra Creditors of Peter Witnesses were admitted to prove intromission with Mails and Duties of Tennents though silver Rent intrometted by one who was infeâ—t in an annualrent out of the Tenements albeit by the intromission the principal sum for which the annualrent was constitute would be satisfied and the infeâ—tment extinct February 4. 1671. Wishart contra Arthur Witnesses were admitted to prove an appryzing to be to the behove of the apparent Heir in respect of this concurrent presumpâ—ion that the appryzing was assigned to the appear and Heirs brother February 22 1671. Gordoâ—n contra Mcculloch Witnesses were admitted to proveâ— Ministers possession of â—ands to be by tollerance of an Herâ—â—or and â—o not â—o be a Glâ—ib belonging to the Kirk where the Ministers possession was decenâ—â—lis trienâ—alis but that writ was necessary if his possession haâ—t been for 40. years to prove the tollerance Iune 22. 1671. Minister of contra Duke of â—alâ—leugh WITNESSES EX OFFICIO were received for proving the delivery of a Bond blank in the Creditors name the matter being betwixt brother and sister where Trust was very presumâ—able February 21. 1667. Iohnstoun contra Iohnstoun Witnesses were examined â—x officio to prove Warrant or Command to a deed done in prejudice of him who had the Commission to do the same deed and could have â—indered others February 21. 1667. Lord Râ—â—toun contra Laird of Lambertoun Witnesses and the writer of a disposition were examined ex officio on thâ— Terms of the Treaty and whether when thâ— writ was read being an absolute disposition it was not read as being redeemable Iuly 2. 1667. Allan contra Fairie Witnesses ex officio being admitted hinc inde not the greatest quantâ—ty proven by two but the quantity proven most pregnantly was followed November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Witnesses ex officio were examined to instruct the cause of a Bond to be by arbitriment and exorbitant it being 37. years dorment without annualrent and the sum filled up with a different hand February 6. 1668. Chisâ—holm contra Witnesses taken ex officio proving the imploying of a Wright in his woâ—â— in a Lodging possest by the â—mployer and his frequent direction anent the work were found to prove against his Heir though above 100. pound and though direction alone without sensible acts is only probable by writ or oath Iuly 21. 1668. Thomson contra Earl of Glencairn Witnesses ex officio 〈◊〉 â—â—de examined in a Reduction on death bed albeit the day of compearance was not come to prevent the death or collusion of the most necessary Witnesses February 16. 1669. Creditors of my Lord Balmerino and Cowper contra Lady Cowper Witnesses ex officio were ordained to be examined before answer for clearing a Trust of the right of â—n appryzing upon divers probabilities hinc inde alleadged February 24. 1669. Earl of Annandail contra 〈◊〉 and Crediâ—ors of Hume A Witness examined ex officio prevaricating in his oath first denying and then acknowledging the same thing was declared in famous and set on the Pillory with a Paper on his â—ace signifying his Fault Iuâ—y 6. 1669. Barclay contra Bâ—rclay Witnesses ex officio being examined were admitted to take away a Bond wholly blank or blank in the Creditors name Fâ—bruary 2 3. 1670. Iack contra Boyd of â—â—nkil and the Earl of Kâ—ngâ—orn conâ—ra Laird of Pâ—â—arro Witnesses ex officio were examined anent the being of a Bond amongst the Writs of a Creditor or his Factor that thereby the debitor might be liberat of the Bond as being retired but was not admitted to prove payment or saâ—isfaction thereof though it was an old Bond without any diligence or payment of annualrent for a long time February 14. 1671. Nâ—â—peir contra Earl of Egâ—â—toun Witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple perâ—on of his whole Estaâ—e without reservation on these points whether the writ was read to him when he subscribed whether he was drunk so that reaâ—on and judgement was disordered and what motives were used to make him subscribe Iuly 11. 1671. Stevâ—ns contra Neâ—lson WITNESSES INSERT in a writ and the Writer were â—ound to have â—ccession as users of that writ as false yet was examined though they were socij criminâ—s and Forgers by their own confession being in an imporbation Ianuary 26. 1670. Lady Toâ—viâ— contra Capâ—ain Barclay A WODSETTER was found to compâ— for the superplus above his â—enâ— though the Woâ—set waâ— before the Act of Parliament 1661. betwixt Debitor and Creditor albeit therein the Vsurpers Act and all such Acts made or to be made were â—enunced Ianuary 29. 1662. Laird of Lamingâ—oun conâ—ra Cheâ—slie A wodset bearing in the Reversion a Tack â—aâ— within the worth of the Land to be given after Redemption was sustained as not Vsurâ—ry but the Wodâ—etter was at a great loss by a Liferent medâ—o â—â—mpore Iune 21. 1662. Laird of Polwarâ— contra Huâ—â— A Wodsetter pursuing for his money was found not to have access thereto tilll he recovered the Possession taken from him by a third party intruding seing he did not de recenti intimate the inâ—rusion and demand his money February 17. 1665. Hopringle of Torsonce contra Ker of Sâ—nderland-hill A Wodset being redeemedâ— upon an Order used though without citation of all parties having interest at the Mercat Cross on the declaraâ—or albeit thereby the Wodsetters Wiâ—e who had a base subaltern infeftment from him in Liferent was excluded and the Redeemer was not found obliged to know the same albeit registrate in the Register of Seasines Iuly â—7 1665. Hamiltoun contra her Tennents A Wodset by a Father to a Son redeemable by the Father during his Liâ—e from his Son on a Rosenoble beâ—ng craved to be declared the Son having appryzed and thereupon alleadging that he had right to the Reversion aâ— and while his Aâ—priâ—ing were Redeemed and till that his Father could not Redeem which at first was sustaâ—ned the case of the Son being favourable the Father having disponed the whole right to a second Wiâ—e but being thereafter debaâ—ed in presentia the Lords were of different judgements and decided not in respect the case seemed to hinder Debitors to Redeem aâ—terior Compryzings till they
and the Inhibition and Reduction thereon in so far as it might be prejudicial to his prior Rights and not to bruik by it The Pursuer answered that albeit Biggar might have acquired this Right to evacuat and purge the same if that had been declared in his acquisition thereof or otherwise legally yet not having done it he must be understood to bruik only by that Right that was standing 2dly If he should declare that he did acquire it to purge it then as his own Right revives which was Reduced so must this Pursuers Right which was also Reduced in that same Reduction revive especially in casu tam favorabili that the Pursuer may not be excluded from her Liferent which is her Aliment and seing the Decreet of Reduction was obtained by meer Collusion and is offered to be disclaimed upon Oath by the Advocats marked Compearing therein The Lords found that Major Biggar behoved to ascribe his Possession to Todrigs Right and to none of the Reduced Rights all being joyntly in his Person and not having declared quo titulo possidebat and that he cannot now declare that he makes no use of Todrigs Right in so far as may be prejudicial to his own prior Rights and makes use of it as it is prejudicial to the Pursuers Rights which were reduced together seing the Pursuers Rights would have excluded the Majors other Rights to which he would now ascribe his Pessession Magistrats of contra the Earl of Findlator Eodem die THere was a Bond granted by one Iackson Principal and a Cautioner which is also alleadged to have been Subscribed by Umquhil Inch-Martin as an other Cautioner which Bond being Registrat at the Creditors Instance he did thereupon Incarcerat the principal Debtor whom the Magistrats having suffered unwarrantably to escape the Creditor obtained Decreet against the Magistrats for payment of the Debt The Magistrats payes the Debt but takes Assignation from the Creditor and now as Assigney pursues the Earl of Findlator as Representing Inchmartin one of the Cautioners for payment who alleadged Absolvitor first Because the Bond is null as to Inchmartin wanting both Date and Witnesses for it bears to have been Subscribed by the Principal and the other Cautioner at such a place such a day before these Witnesses who are subjoyned and designed and after the Names of these Witnesses sayes and subscribed by Inchmartin at after which there nothing follows in the Bond but the Subscriptions of Parties none of which subscribe as Witness to Inchmartin yet his Subscription is amongst the Subscriptions of the other Parties but as to him it hath neither place day nor Witnesses The Pursuer offered to condescend that the day and place of the Subscription of the Witnesses were the same to Inchmartin as to the Principal and other Cautioner which they alleadged to be sufficient to make up this nullity as is ordinar where the Writer and Witnesses are not Designed for thereupon the Defender may improve the Bond by the Witnesses insert The Defender answered that albeit the Lords supply the want of Designation of Writer or Witnesses by condescending on their Designation that means of Improbation may be afforded which is not the question here yet the Lords did never suffer Parties to fill up Witnesses where no Witnesses were insert nor no Date either as to Year or Moneth The Lords would not Sustain the Bond upon this condescendence but ex officio ordained the Witnesses if they were alive to be Examined whether they were Witnesses to Inchmartins Subscription that same day and place with the rest reserving to themselves what their Testimonies should â—perat The Defender further alleadged Absolvitor because he offers him to prove that theâ—e was a Decreet against the Magistrats now pursuing at the Instance of the Creditor for payment of the Debt because they suffered the Principal Creditor Incarcerat to escape so that the Debt being payed by the Magistrats coming in the place of the Principal Debtor ex delicto it is in the same case as if the Principal Debtor himself had payed which necessarly liberats his Cautioners It was answered that the Magistrats are only lyable to the User of the Diligence pro damno interesse and to no other for the Creditor User of the Diligence might have consented to the escape of the Rebel or might discharged the subsidiarie Obligation or Action competent against the Magistrats for suffering him to escape whether the Cautioners would or not and therefore the Magistrats might as well take an Assignation from the Creditor for payment of the Debt which implies the Creditor his passing from them as bound ex delicto in which case he would only have given them a Discharge but here the Magistrats Contracts with the Creditor and acquires the Assignation ut quilibet upon an equivalent Cause It was answered for the Defender that this Assignation is evidently simulat in place of a Discharge there having preceeded a Decreet against the Magistrats ita est that Assignations granted to persons obliged for a Debt doth operat alwise as to the Matter only as a Discharge though more summarly as when Cautioners pay and are Assigned they must allow their own part but much more these who are lyable ex delicto having payed upon a Decreet cannot seek relief whether they have Assingation or Discharge especially against Cautioners and if this were Sustained all Rebels who had Cautioners might be suffered to escape where there is any Cautioners for Messengers might be Deforced taking Assignation to the Debt and proceeding against the Cautioners and albeit the user of the Diligence might consent to the Liberation yet he could not pass from the Obligation ex delicto which accresceth to all Parties having Interest and if the Cautioners had been distâ—est by the Creditor they might pursue the Magistrats suffering the Principal to escape ex delicto damno for if he had not been suffered to escape they would have been payed The Lords found this Defence relevant that the Magistrats pursuers having suffered the Rebel to escape and Decreet against them and having satisfied the Debt to the Creditor that they could not have recourse against the Cautioners either by vertue of a Discharge or Assignation Here it was not Debated whether or not they might have recourse against the principal Debtor escaping who was principaliter in delicto and the Magistrats but accessory Mr. William Mushate Minister of Hassenden contra the Duke and Dutches of Buccleugh Ianuary 28. 1668. THe Minister of Hassenden having obtained Designation of a Gleib out of the Duke of Buccleughs Lands pursues Removing The Duke Suspends on this Reason that the Designation is null not bearing Citation nor â—numation to the Parochiners neither is the Duke Cited to the Designation upon 60. dayes as being out of the Countrey It was answered that by the constant Custom in such Cases there is only Intimation given at the Kirk Door or out of the Pulpit of the day of Designation which the
Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ— whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ— and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâ—phan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a â—aked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for