of the second must approve both and the approbation is sufficient Warrand for him to intromet and the Auditors to compt with him The Lords Repelled the Defense upon the Act of Indemnity in respect of the foresaid Exception contained therein and likewise found that the Oath subjoyned to the second accompt could not exclude the Pursuer from insisting for the Defenders Fathers intromissions ommitted out of the first accompt and wherewith he Charged not himself but found that the Defender was secure by the Act of Indemniâ—y so far as he had charged himself with and compted and found that he was not obliged after so long a time to instruct his Commission or the Warrand of the Auditors that fitted his accompts but that the approbation was sufficient to astruct the same Lady Diana Maxwel contra Lord Burley and others Feb. 15. 1667. LAdy Diana Maxwel Lady Cranburn and other Executors confirmed to the Countess of Dirletoun pursued the Lord Burley as Representing his Father for payment of a Bond granted by his Father and others to the umquhil Earl of Dirletoun for the price of a great quantity of Victual and that upon these Grounds that the Pursuers are Executors surrogat to the Countess and have licence to pursue which Countess had an assignation from the Earl to his Houshold-stuff which bore this general Clause And to his Chattel and other Moveable-goods and Gear whatsomever under which generality this Bond is Comprehended being moveable and for Victual and so is a Chattel as the word is understood by the Law of England whereby all that is not by Infeftment of Fee is comprehended by the word Chattels and belong to the Executors as Laisses c. 2ly The Countess was nominat universal Legatrix in the Earls Testament and thereby has Right to this Moveable-bond 3ly As Relict she has Right to the half It was alleadged for the Defender no Process upon any of these Titles First Because the assignation cannot be extended to this Bond neither is the word Chattels to be Interpret according to the Law of England the assignation being made by a Stots-man and made in Scotland after the Scottish manner 2ly The Pursuers as Executors to the Countess cannot pursue upon the universal Legacy the Debitors of the Defunct but only the Defuncts Executorsâ— because this Bond is yet in bonis primi defuncti and must be Confirmed 3ly The Relict cannot pursue the Debitors for her half but at least she must call the Executors The Lords found both the last Alleadgences Relevant but as to the first before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels by the Law of Englâ—nd in respect it was notour to them that the Lord Dirletoun beìng a Servant of the Kings lived the most part of his time in England and in Scotland there is no use of the word Chattels Isobel Glen contra Iohn Hume Feb. 19. 1667. ISobel Glen as assigney by Mr. Edward Jameson having obtained Decreet against the umquhil Earl of Hume for certain by-run Stipends and thereupon having arrested in my Lord Whitekirks hands certain Sums due by him to the Earl of Hume She now pursues to make forthcoming Compearance is made for Iohn Hume who produces an assignation by the Earl of Hume to the sums due by Whitekirk and also produces a Gift of the Earls Liferent-Escheat and alleadges first No Process at the Arresters Instance because the Earl of Hume being dead the Debt must be first Establisht by a Decreet against one Representing him who must be called principaliter before the Person in whose hands the arrestment is made can be decerned to pay that which was the Defuncts 2ly Iohn Hume must be preferred as Donatar because the arrestment was laid on after the Earl of Humes Rebellion by which his Goods belonged to the King and no Sums can be made forth-coming as belonging to him after the Rebellion because they belonged to the King It was answered to the first That if the Earl of Hume had not dyed at the Horn the Pursuer would have either Confirmed as Exâ—cutor Creditor or called the Earls Executors but that is not necessar seing the Earl died at the Horn and could not have one to Represent him in mobilibus and that now the Donatar who succeeds compears To the 2. the Pursuer as Arrester ought to be preferred because albeit the arrestment be after the Rebellion yet it is before the Gift or Declarator and it is for a Debt due by the Earl before the Rebellion and so doth exclude the Donatar for which they produced a Decision marked by Dury Pilmour contra Gaigie In which case the Gift was granted by a Lord of a Regality having the benefit of the Escheat whereanent the Lord Advocat Represented that this could not be drawn in consequence to prejudge the King or his Donatar because the Lord of Regality being a Subject debuit invigilare sibi by declaring the Rebellion without delay but the King cannot so soon know nor is he prejudged by the neglect of his Officers Yet the â—ords uâ—animouslie preferred the Arrester the Advocat forbearing to Vote for they tâ—â—ught the câ—se of Creditors for Debts before Rebellion were not to be prejudged â—â—â—ng Diligence before Declarator or if they should Poind Arrest Adjudge c. Cranstoun contra Wilkiâ—on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse he is obliged to Infeft her in a Tenement exprest therein and in all the Conquest during the Marriage which Infeftments were to be taken to them the longest liver of them two in Conjunct-Fee and their Heirs betwixt them Which failzing to the Heirs of the Mars Body Which failzing to the Wifes Heirs whatsomever after which the Husband purchâ—sed a piece of Land but took the Infeftment thereofâ— to him and his â—ife and the heirs betwixt them Which â—ailzing to his own heirs whatsomever omitting the wifes heirs This Cranstoun obtains hiâ— self Infeft in this Conquest Tenement as Heir to the Wife and thereupon obtained Decreet for Mails and Duties Wiâ—â—ison as Heir to the Husband pursues Reduction of the Decreet on these grounds first That Cranstouns Infeftment as Heir to the Wifeâ— was null because the Wife was not Fiar but Liferenter 2ly The Wife having accepted of an Infeftment posterior to the Contract without mention of her Heirs that innovat the Provision of the Contract and excludes her Heirs It was answered first That the Man and Wife being Conjâ—nct fiars the Wife was Fiarâ— and the Man but Life â—enter because the last Termination of Heirs whatsomever Terminat upon her 2ly Albeit Cranstoun had taken his Infeftment wrong Wiâ—kison cannot quarrel the same because he as Heir to Wilkison was obliged to Infeft him as Heir to the Wife and to the posterior Inâ—eftment it is contrair to the provision of the Contract of Marriage and there does appear no accepting thereof by the Wife 3ly Cranstoun is
THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
contribution money payable to them And such other General Letters as are expresly warranted be the Acts of Parliament And ordains an Act to be extracted hereupon and insert in the Books of Sederunt ACT for keeping the Barrs Iune 22. 1665. THE Lords considering what great confusion and disorder is occasioned by the thronging of people of all sorts within the Barrs of the Inner and utter House in the morning before the Lords sit down and at twelve a clocke in the forenoon and the prejudice arising there through by the miscarrying of Processes For remeid whereof the Lords do hereby discharge the Macers in time coming to give access to whatsomever Persons of whatsoever quality within the Barr of the Inner-house after any of the saids Lords have entred the House in the morning or after twelve a clock till the Lords be all risen off the Bench and be removed out of the House And sicklike that they permit no person whatsoever to stay within the Innermost-barr of the Utter-house where the ordinary Lord and Clerks do abide neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call nor during the time that the ordinary Lord is upon the Bench neither after untill the reading of the Minut Book be ended except the persons following viz. The keeper of the Minut Book the King's Solliciter and one Servant appointed by His Majestie 's Advocat And that person appointed for reading the Minut Book during the time of the reading of the Minut Book and no longer And the Macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids Barrs during the time foresaidâ— Certifying the saids Macers that if any of them shal be found negligent in performance of their dutie in the premisses They shall forthwith be removed from their Office And ordains an Act to be extended hereupon ACT anent Pro-tutors Iune 10. 1665. FOrasmuch as in the Action of compt and reckoning depending at the instance of Robert and Bessie Swintouns against Iames Notman at length heard before the Lords of Council and Session It being questioned and debated how far a Pro-tutor is lyable by the Law and Practice of this Kingdom whether for ommission as well as for commission and intromission And the saids Lords considering That albeit Pro-tutors be excusable as to their bygon intromissions In regard it was not constant hitherto how far they could be lyable yet finding it expedient that the foresaid question should be determined as to the future and the Leiges no longer left in uncertainty thereanent Therefore the Lords declare that whatsoever person or persons shall in time coming intromet with the means and estate of any Minor and shall act in his affairs as Pro-tutors having no right of Tutory nor Curatorie established in their Persons They shall be lyable aswell for what they might have intrometted with if they had been Tutors and Curators as for what they shall intromet with de facto Sicklike and in the same manner as Tutors and Curators are lyable by the Law and Practice of this Kingdom And the Lords declare that they will observe this as an inviolable practice in time coming And ordain these presents to be published at the Mercat Cross of Edinburgh and an Act to be extended thereupon and insert in the Books of Sederunt ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before November 8. 1665. THE Lords considering That through the shortness of the Summer Session unnecessary giving out and malicious detaining of Processes which have been seen the Winter Session immediately preceeding The Leiges are oftimes frustrate of Justice during that Session after much charges expenses time vexation and trouble And having it always in their thought how Justice may be speedily administrat with the greatest ease and least expenses to the Subjects Do declare that in the future they will not allow Defenders and their Procurators to see Processes in communi forma during the Summer Session where the same has been seen and returned by them the Winter Session immediately preceeding and that they will proceed to do Justice therein without indulging to defenders any such sight during the Summer Sessions in the future where there hath been no material amendments made be the Pursuers of their Summonds nor new pieces produced in the Process to be instructions and grounds thereof and which were not seen the Winter Session immediately preceeding And ordains these presents to be insert in the Books of Sederunt His Majesties Instructions to the Commissars February 20. 1666. THE Lord President having received the Instructions following from Iohn Earl of Rothes His Majesties High Commissioner did communicat the same to the hail Lords and that it was His Graces pleasure and desire that the same might be recorded in the Books of Sederunt The Lords of Council and Session ordained the saids Injunctions to be insert and recorded in the saids Books of Sederunt under Protestation always that the recording of there saids Injunctions should be no ways prejudicial to the priviledge of the Lords of Session or derogat in any sort from their Iurisdiction in civil causes And ordained the said Injuctions after recording thereof to be given up and delivered to the Archbishop of St. Andrews his Grace or to any having his warrand to receive the same And that the Extracts of the saids Injunctions be given to all Persons who shal conceive themselves concerned therein whereof the tenor follows Sic Supra Scribitur CHARLES R. HIS Majesty Authorizes and injoyns these following Instructions contained in five Leaves Attested and Subscribed by two of the late Commissars of Edinburgh for regulating the Proceedings of the Commissars in their respective Courts Oxford January 21. 1666. and of His Reign the seventeenth year By his Majesties Command Sic Subscribitur LAVDERDAIL INstructions and Rules set down and appointed by the Reverend Fathers Arch-bishops and Bishops in this Kingdom to the Commissars Clerks Procurator-fiscals and other Members of Court of the Whole Ecclesiastical Jurisdiction having Commission from the saids Reverend Fathers 1. Ye are by vertue of your Commission to decide and judge in Causes concerning Benefices and Teinds in matters of Scandal Confirmations of Testaments great and small within your bounds all Causes Testamentar and in all other matters wherein the Oath of Party is required if the same does not exceed fourty pounds And in all other Causes wherein the Parties submit themselves to your Jurisdictions 2. Ye are to Judge in Reductions and Declarators of Nullity of Marriage for Impotency or upon any other ground or reason whatsomever All actions of Divorcement for Adultery or upon any other ground All Actions or Questions of Bastardry and adherences when the samine shall have a connexion with the Lawfulness of Marriage or Adultery all which are reserved to the Commissars of Edinburgh and do belong to their Jurisdiction privative But
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
known or might have been known to the Pursuer the time of the Bargain at least to his Tutors who made the Bargain Secondly there is no legal Distress but voluntar payment made all the years bygone The Lords Repelled the Defense and found that seeing the Distress by the Stipend was unquestionable payment made thereof without Processes prejudged not and that the Pursuers knowledge could work nothing being then a Pupil Laird of Elphingstoun contra Sir Mungo Murray Eodem die THe Laird of Elphingstoun having Charged Sir Mungo Murray for the price of some Lands bought from him he Suspends and alleadges that by the Disposition the Charger is oblieged to relieve him of all Inhibitions and now produces several Inhibitions The Charger answered non relevat unless there were a Distress seeing the Disposition bears not to purge but only to relieve or to warrant against Inhibitions The Lords considering that the Chaeger vergebat ad inopiam found the Reasons Relevoan till Cauton were found to warrant the Suspender from these Inhibitions They found also that where the Charger was oblieged to pay to the Suspender the Composition for his Entry to the Lands That the Suspender should have no Composition if he got it Gratis albeit he alleadged he got it for other good Services Skeen contra Lumsdean Eodem die ANdrew Skeen having Charged Alexander Lumsdean for payment of a sum for which he was Cautioner for his Brother Mr. Thomas Lumsdean he Suspends upon this Reason that the cause of the Bond was two Bills of Exchangeâ— which was Protested The Suspender answered he offered him to prove they were payed after the Protest by him who drew the Bills or by Mr. Thomas Lumsdean in whose Favour the Bills were drawn The Suspender replyed that the Alleadgence ought to be Repelled because he was assigned to the protested Bills for relief of this Cautionry and intimat his Assignation to Skeen who delivered the Bills and got the Bond Charged on The Charger offered him to prove paymentâ— before that Assignation or Intimation and ad modum probationis produced an Instrument under the Seal of Camphire and a Declaration of the Conservator there bearing that upon inspection of Mr. Thomas Lumsdeans Compt Books they found that he had acknowledged two or three sums payed in part of these Bills and exprest the Dates thereof prior to the Assignation The Suspender alleadged the Compt Books could not prove unless they were produced Cognosced and Proven to be Lumsdeans Compt Books Secondly they could not prove contra tertium Thirdly the Question being de data and they holograph they could not prove their Date Fourthly these Testificats can prove nothing unless they had been taken upon Processes or by Commission The Lords found the Testificats could not prove but that the Compt Book being Cognosced might prove against the Assigney being Brother to Lumsdean and the Books out of his hand since he was broken for amongst Merchants Compt Books or Writs without Witnesses by their Custom are sufficient and ordained Lumsdean and his Brother to Depone upon the having of the Books to produce them if they had them and if not granted Commission to the Magistrats of Camphire and Conservator to Cognosce the Books and to report what they find of this matter in them Marjory Gray contra Dalgardno February 7. 1662. MAjory Gray pursues Dalgardno as vitious Intromettor with the Goods of a Defunct to pay his Debt who alleadged Absolvitor because the Defunct Died Rebel and at the Horn and so nihil fuit in bonis defuncti seing by the Rebellion all his Moveables belonged to the Fisk ipso jure without necessity of tradition for the King jure coronae hath the right of Lands without Infeftment and the right of Moveables forefaulted or fallen in Escheat without Tradition or Possession The Pursuer answered non relevat because the Defender Intrometting without any warrand from the Fisk is quassi prodo and Moveables are not ipso facto in the Property of the Fisk by the Rebellion But if they be Disponed by the Rebel for an onerous Cause the Disposition before Rebellion will be valid or if they be arrested for the Defuncts Debts and recovered by Sentence making forth-coming or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel he will be preferred to the Fisk by all which it appears that the Rebellion transmits not the Property The Defender answered that these Instances do only show that the King prefereth Creditors and takes but the benefit of what the Rebel had deductis debitis or what was Contracted with him bona fide but doth not say that the Property of the Goods were not in the Fisk but in the Rebel The Lords repelled the Defense The Defender further alleadged that not only was the Defunct Rebel but that he had a Gift of his Escheat The Pursuer answered non relevat unless it had been before the vitious intromission or at least ante motam litem The Lords Repelled the Defense unless the Defender would alleadge that the Gift was ante motam litem for they thought that the Taking of the Gift was like the Confirmation of an Executor which purged vitious Intromission being ante motam litem Iohn Bonnar contra Robert Foulis Eodem die JOhn Bonnar pursues Robert Foulis to pay the Debt of a Person Incarcerat by Act of Warding whom the Bailzie set at Liberty without Warrant The Defender alleadged no Processes because the Person Incarcerat was not Called who might have proponed Exceptions against the Debt that it was payed c. Secondly that thereafter the Pursuer had taken himself to the Incarcerat Person and gotten part of payment from him The Lords Repelled the Defenses and decerned but because there was a Reduction depending of the Decreet whereupon the Person was Incarcerat and that he was set at Liberty in Anno 1659. when there was no Iudicatory sitting they superceeded Extracting for the time till the Reduction was Discust Countess of Buckcleugh contra Earl of Tarras Eodem die THe Countess of Buckcleugh pursuing Reduction of a Contract of Marriageâ— betwixt her Sister and the Earl of Tarras The Lords would not Sustain incident for the Earl of Tarras albeit he was minor that Contract being his own Writ and not his Predecessors Lockerbie contra Applegirth Eodem die JOhnstoun of Lockerbie having obtained Decreet against Ierdine of Applegirth for a Sum payed by the Pursuers author as Cautioner for the Defenders Father The Lords found Annualrent due by the Principal to the Cautioner by an Act of Sederunt 1613. and that from the year 1619. until now in respect the Cautioner had payed upon distress by Decreet of Transferrence and a Charge of Horning thereon Acheson contra Mcclean Eodem die DAm Iean Acheson pursues the Laird of Mcclean as representing their Predecessors who was Cautioner in a Suspension The Defender alleadged nothing produced to prove the Suspension Discussed but Letters of Horning upon a Protestation which cannot
appearand Heir alioqui successurus because vita presumitur The Pursuer answered the Defense was not Relevant unless the Defender would be positive that the time of the Disposition his Elder Brother was on life especially seing he had been out of the Countrey twenty years and was commonly holden and repute to be Dead The Lords sustained the Defense that the Elder Brother was on life the time of the Disposition and reserved to their own consideration the Probation in which if the Defender proved simply that his Brother was actually living the time of the Disposition there would remain no question and if he prove that he was living about that time they would consider whether in this Case the presumption of his being yet living should be probative Paâ—rick Herron contra Martein Stevenson Iune 17. 1662. PAtrick Herron having obtained Decreet of Removing against Martein Stevinson he Suspends on this Reason that the Decreet was not upon Litiscontestation but a time being Assigned to the Suspender to find Caution for the violent Profits and he failing was Decerned without being admitted to any Defense and now alleadges that he ought not to remove because he obtained Decreet of Adjudication of the Lands in question against the common Author and thereupon charged the Superiour long before the Chargers Decreet of Adjudication or Infetment The Charger answered that the Reason ought to be Repelled because the Decreet was given against the Defender compearing and failing as said is Secondly The Charger stands Infeft upon his Adjudication The Pursuer was never Infeft neither did he use all Diligence to get himself Infeft not having Denunced the Superiour and in case he had Suspended Discussing the Suspension The Lords found the Reason Relevant and Proven and Suspended because they found no necessity for an Appryzer to use further Diligence against the Superiour then the Charge of Horning unless the Superiour had Suspended both and that in competition the other Party had done greater Diligence Earl of Marischal contra Charles Bray Iune 18. 1662. THe Earl of Marischal having obtained Decreet in his own Baron Court against Bray compearing for a years Rent of his Maines of Dunnottor herein he had been possest by the English Bray Suspends and alleadges compensation upon a Bond assigned to him due by the Charger who answered competent and omitted and so not receivable in the second Instance especially being Compensation which by special Act of Parliament is not to be admitted in the second Instance The Lords Sustained the Reason of Compensation and found that a Baron Court was not such a Iudicature as that Alleadgences competent and omitted that should be Repelled in the second Instance Mr. Iohn Wallace contra Forbes Iune 19. 1662. RObert and William Forbeses and Heugh Wallace being bound in a Bond as Co-principals Heugh Wallace being Distressed for all consigned the Sum to this Chargers Son Forbes Suspends on this Reason that there is no Clause of Relief in the Bond and Wallace being Debitor in solidum and having gotten Assignation confusione tollitur obligatio The Charger answered that though there was no Clauses of Relief hoc iâ—est where many Parties are bound conjunctly and severally that each is oblieged to relieve others The Lords Repelled the Reason of Suspension for the Suspenders part and found them lyable therefore but not for the other Co-principal Parties Isobel Drummond contra Iean Skeen Eodem die ISobel Drummond pursues Iean Skeen as behaving her self as Heir to her Brother Iames Skeen by uplifting the Mails of the Lands wherein he Dyed Infeft to fulfill her Contract of Marriage with Iames. The Defender alleadged absolvitor because the uplifted those Duties by vertue of her Infeftment being Served Heir to Iohn Skeen Son to Iames Skeen the Pursuers Debitor who was Infeft not as Heir to his Father Iames but as Heir to her Good-sire The Pursuer answered in respect to the Defenders Seasine or to Iohn Skeens which were evidently null seing Iames Skeen was Infeft and so John could not pass over him to his Goodsire and if any regard were to such Infeftment it would open a Door to all Fraud and abstracting of Defuncts Creditors Evidents The Lords found the Defense Relevant to purge this viticus passive Title seing the fâ—â—â—zie was not in this Defender but in John Skeen his Brother Son but prejudice to Reduce as accords but ordained her to Renunce to be Heir to James that Adjudications might be obtained Mr. Alexander Vernor contra George Allan June 24. 1662. MR. Alexander Vernor as Executor to Mr. David Calderwood Charges George Allane to pay a part of the Defuncts Stipend as he who intrometted with the Teinds of the Lands lyable therefore whereupon he had obtained Decreet The Suspender alleadged that the Decreet was in absence and any intromission he had was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor to whom he made payment bona fida before any Arrestment or Pursuit against him The Charger answered non Relevat because the Suspender is oblieged to know that by Law the Teinds are lyable for the Ministers Stipend Secondly He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual but that he took Disposition of the Corns ipsa corpora before they were drawn The Lords found the answer Relevant to elide the Reason and found the Defender lyable for the tenth part of the Cornes he bought Robert Hay contra Hoom of Blackburn Eodem die RObert Hay Tailzior pursues Hoom of Blackburn as representing his Father upon all the passive Titles to pay a Debt of his Fathers The Defender alleadged absolvitor because there was nothing produced to instruct the Debt but an Extract out of the Register bearing the Bond to have been Registrated by his Fathers consent whereas it is nottour and acknowledged by the Summons that his Father was Dead long before the Date of the Registration The Pursuer answered the Extract is sufficient to instruct the verity of the Bond being in a publick Register of the Session alb it the Defunct was Dead the time of the Registration which might have been the Creditors mistake and cannot prejudge them seing vitapresumitur especially now when through the loss of the Registers principal Writs cannot be gotten The Defender opponed his Defense and the Decisions of the Lords lately in the like case concerning the Earl of Errol because nothing can instruct against any man but either a Writ Subscribed by him or the Sentence of a Judge upon Citation or consent and this is neither The Lords refused the Extract simply but ordained the Pursuer to condescend upon Adminicles for instructing thereof either by Writ or Witnesses who saw the Bond c. of Woodhead contra Barbara Nairn Eodem die WOodhead pursues Barbara Nairn for the Mails and Duties of certain Lands The Pursuer alleadged absolvitor because she Defender stands Infeft in Liferent of these Lands It was Replyed The Defenders Husband
Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
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
Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
that Term was past before his Presentation at least before his Institution and Collation 2ly There being but a Decreet of Modification and no Locality The Earl alleadged Locality should be first made and he lyable but for his proportional part of the Stipend The Lords found that the Stipend affected the Teinds and the Minister might take himself to any of the Heretorsâ— in so far as he had Teind and therfore sustained the Condescendence and ordained the Charger to prove what Teind my Lord had without prejudice to him to crave his Relief Lady Craig and Greenhead her Husband contra Lord Luire Decemb. 7â— 1664. THe Lady Craig being Infeft in Liferent pursues her Tennents Compearance is made for the Lord Luiâ—e who Appryzed the Lands of her Husband and alleadges that he ought to be preferred because he stands publictly Iâ—feft and any Right the Lady has is but base holden of her Husband and before she attained Possessionâ— he was publickly inâ—eft It was answered for the Lady that her Husbands Possession is her Possession and so her Infeftment was cled with Possession from the Date thereof It was answered that that holds only in the case of an Infeftment to a Wife upon her Contract of Marriage but this was but an additional gratuitous Infeftment stante matrimonio she being competently provided before by her Contract In which case such Provisions cannot prejudge Lawful Creditors neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife unless she had Possessed seven years after his Death The Lords found that such Infeftments as these being gratuitous and voluntar could not be prejudicial to the Husbands Creditors nor give the Wife a possessory Iudgement And the case here being with a Creditor of the Husbands they did not proceed further to consider and determine if the Husbands Possession in such a case would not validat the base Right as to any acquired Right thereafter Eccles contra Eccles. Eodem die IN an Action of a Compt and Reckoning betwixt these two Infants It was alleadged for the Defender that he being pursued upon his Fathers back-bond oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother to Thomas Ecclesâ— and umquhil Andrew Eccles the Pursuers Father It was answered upon condition that Mr. Hugh the Defenders Father should have the third part to himself The Question was concerning the manner of Probation The Pursuer alleadged it was only probable scripto he being a Pupil and his Father dead The Defender alleadged it was probable by the Tutors Oath being so likely in it self that Mr. Hugh being the third Brother should have the third share and that Thomas the Tutor did accordingly allow him the third share and there was produced a Testificat of Balloche that there was an agreement Notwithstanding whereof the Lords refused to take the Tutors Oath ex officio seing they found albeit it were Affirmative it could not prove against the Pâ—pil Scot in Cairlyle contra Henderson and Wilson December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds they Suspend and offer them to prove payment of a part by Witnesses and alleadges that it being the Law of England that Wâ—tnesses can prove to take away Writ that therefore these Bonds being Contracted in England with English men the Suspenders ought to have the same benefit of Probation they would have had if they had been Arrested in England upon their Bonds or pursued there and adduced a Practick of Dury in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves and finding that locus contractus was in England But the Bonds bare expresly a Clause of Registration in Scotland And that such Bonds had been ordinar betwixt Merchants in England and Merchants in Scotland and in no time such a Probation admitted and that it would furnish an ordinary delay in such Cases to the disadvantage of Merchants and hindering of Trade by always offering to prove payment in England by Witnesses which could require long time Therefore they found the reason only probable scripto vel juramento Mr. Cornelius Inglis contra Mr. Rodger Hogg December 9. 1664. MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar upon an Infeftment and Appryzing It was alleadged for the Tennents that they were Tennents to Mr. Rodger Hogg by payment of Mail and Duty to him and he was not called The Pursuer answered non relevat unless the Defenders condescend upon Mr. Rodgers Right which might defend him and them The Defenders answered first that they could not be oblieged to Dispute their Masters Right but he ought to be called to Dispute his own Right 2ly It was insinuat that Mr. Rodger had an Appryzing and a Charge against the Superiour The Lords repelled the Defense unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer being prior to his but the Tennents alleadged no such Right and Mr. Rodgers Charge was posterior to the Pursuers Infeftment Iohn Veatch younger of Dawick contra Alexander Williamson Eodem die JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor for paying to him of his proportional part of the Mails and Duties of Appryzed Lands as coming in pari passu with the Defender by an Appryzing within a year of his The Defender alleadged absolvitor because he has Right to the first Appryzing led before the Act of Parliament betwixt Debitor and Creditor and therefore he has the benefit of the 21. Act of the last Session of Parliament declaring that where an Appryzer for his own Security had redeemed a prior Apprysing and gotten Right thereto before the Act betwixt Debitor and Creditor The said first Apprysing should have the same effect it would have had before the Act Debitor and Creditor and should not come in pari passu The Pursuer answered that behoved only to be understood where the second Appryzer had upon necessity to shun the expyring of the legal redeemed and gotten Right to the first Apprysing which could not be said here because the Debitor being minor the legal had and has a long course to run The Lords sustained the Defense without any such limitation in respect of the express Tenor of the Act of Parliament Robert Learmonth contra Laurance Russel Eodem die RObert Learmonth being pursued by Laurance Russel for the price of Wines and the matter referred to his oath gave in a qualified Oath bearing that the Wines in question were sent to him not to be sold till further order and that therefore he keeped them unsold till the end of the year and when they were in hazard of spoilling sold them for 12 pound Sterling the Tun and that he that sent them was Debitor to him by Bonds and Decreets in a greater sum It was alleadged neither member of the quality was competent not the first because it was offered to be proven that the
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ— the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ— Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
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
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
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
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ— a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ— contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâ—tior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâ—wer of Deputation which they found not to be annulâ—eâ— by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
prejudged as to the constituting an Annualrent in the point of Right not being called yet as to the Point of Possession the Right being constitute he might 3dly Albeit the Heretor must be called when his Ground is first affected with an Annualrent in attinenda possessione yet if the Annualrenter be in possession he may continue the same without calling the Master as well as in Tyends Thirlage c. And here the old Precept of Poynding was evidence sufficient of a prior Possession in re tam antiqua The Lords found that the Decreet was Possession sufficient to interrupt Prescription Minister of contra Lord Elphinstoun Iune 16. 1666. MInister of pursues the Lord Elphinstoun for the Viccarage Teinds of his Lands in his Paroch It was alleadged absolvitor because he brooked these Lands by immemorial possession without paying any Viccarage and so had prescribed Exemption and Liberty It was answered that the Viccarage being due de jure cummuni desuetude cannot take them away nor can any Prescription give Right to them unless it were by a Title as if the Lands had been Templar Lands or belonging to these Orders which payed no Teynds but were exempted by the Cannon Law and therefore in the last Session it was found in the Case of the Earl of Panmoor that 40. Years did not prescribe the Right of Parsonage except for the Years preceeding the 40. It was answered that there was a great difference betwixt Parsonage and Viccarage which is Local and Consuetudinary which is therefore only found due according to what has been accustomed to be payed so that the Teynd of Lint Hemp Geess Stags Swine Fruits Fishes are only due in these parts where they have been so accustomed and therefore as custome may take away a part so it may extinguish the whole The Lords found the Defender could be no furder lyable then for that Viccarage which was commonly payed throughout all the Kingdom viz. Stirk Lamb and Wool and sustained not the same for Milk or any other particular But the Defender upon the twenty one of Iune having Supplicat to be further heard alleadging that it was a common Case that when the Lands were most in Labourage and the Viccarage small and not considerable that through the whole Country Viccarage was never craved time out of minde The Lords stopped Interlocuquutor till they were further heard Thomas Begg contra Patrick Nicoll Iune 22. 1666. THomas Begg gave Commission bearing that he had delivered a certain Sum of Money to Patrick Nicoll to buy Wair for him in England whereunto there is subjoyned the said Patrick his acceptance bearing Sea hazard excepted Thomas Begg now pursues for the Money or Wairâ— Patrick Nicoll alleadged absolvitor because he offers him to prove that shortly after the said Commission he went upon the Voyage and that the Ship was taken and the whole Goods there wherein it must be presumed the Pursuers Money was It being impossible for the Defender to prove that that individual Money was there and yet he is willing to make faith that it was there It was answered that the Defender had Factor-fee and should have transmitted the Money by Bill as he did some of his own and at least he might prove that he had a considerable Sum of Money in the Ship The Lords sustained the Defense and Repelled the Reply and that the Defender being trusted by the Pursuer he could not refuse his Oath in Supplement that his very Money was taken seing he neither might nor could show what money he had when he entrèd to his voyage unless the Pursuer alleadged that he gave the Defender allowance for the Exchange Earl of Eglingtoun contra Laird of Cunninghamhead Iune 23. 1666. THE Earl of Eglingtoun pursues the Laird of Cunninghamhead for the Teynds of Peastoun who alleadged absolvitor for 60. libâ— Yearly which by Decreet of the Plat he payed to the Minister of Irving and produces the Decreet It was alleadged that where the Decreet bore out of the Teinds it was meer Error of the Clerk and disconform to the ground of the Decreet which was a tripartite Contract whereby the Earl of Eglingtoun agreed for so much Victual out of his Teynd beside what was to be payed by the Town of Irving and Heretors and the Heretors oblidged them and their Heirs and Successors of these Lands to pay so much Money which cannot be understood out of their Teynd they being oblidged as Heretors and the Teynd not being theirs but the Earl of Eglintouns who was oblidged so much out of his Teynds besides these oblidgments It was answered that this being to lay a burden of Stipend upon the Stock is most unfavourable and the meaning thereof cannot be inferred unless it had born expresly out of the Stock especially seing the Teynd was under Tack and it was ex gratia for them to pay any more then their Tack-duty but now when the Tacks are expired the Earl cannot crave the whole Teynd and lay this burden upon the Stock 2dly The Lords cannot alter the express tenor of the Decreet of Plat which was a Commission of Parliament The Lords found that the tripartite Contract as to this did not burden the Teynds and therefore seing the Plat could only decern out of Teynds they found that by this Contract the Heretors behoved to relieve the Teynds of this burden out of their Stock Arbuthnet contra Mary Keith Eodem die Andrew Arbuthnet having gotten a Gift to the behove of the Viscount of Arbuthnet of the Marriage of the Heirs of Iohn Keith of Pâ—tten did thereupon pursue the two Heirs Portioners one of them being dead he insists now against the other for her part who alleadged no Process because none was called to represent the other who is thus far interessed that the Probation of the avail of the Marriage against the one will prejudge the other The Lords Repelled the Defense and found it would not prejudge the other against whom new Probation behoved to be used Patoun and Mercer contra Patoun Eodem die JOhn Patoun as Heretor of the Miln of Mukart pursues for the abstracted Multures and alleadges that the Miln is the Miln of the Barony and the Lands a part of the Barony and that they being in immemorial Possession of Intoun Multures of one peck of the Boll and that above thirty years ago there was a Decreet arbitral by the Marquess of Argyle Decerning these Multures The Defenders alleadged Absolvitor because they were Infeft before the Pursuers Right produced cum molindinis and as to the Act of Court the whole Tennents were not present and the Decreet Arbitral it is under Reduction The Lords sustained the Pursuers Condescendence reserving the Reduction as accords Masson contra Iune 27. 1666. MAsson pursuing a Declarator of Escheat It was answered that all Parties having Interest were not Cited at the Mercat Cross conform to the Warrand of the Letters It was answered that was but stilus curiae long indesuetude and it
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
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true â—f the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâ—ld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâ—ch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
1668. THe Laird of Wamphray being due a yearly Annuity to his Good-mother the Lady Wamphray which now belongs to the Laird of Castlemaines her Husband jure mariti there is a competition thereanent betwixt Factor to the Earl of Dumfress whose Name was used in the Gift to Dumfreis behove as Donator to the Escheat of Castlemaines and Smart as having appryzed from Castlemaines the Right to this Liferent jure mariti who alleadged that he ought to be preferred to the Donator because albeit his Appryzing was after the Rebellion yet it was upon a Debt anterior to the Rebellion and was long before the Donators Gift and therefore according to the known Custom Diligences of Creditors being before the Gift or Declarator are alwayes preferred to the Donators of single Escheat It was answered for the Donator that that Custom was never further extended then to Moveables or Moveable Sums poynded or made forthcoming upon Arrestments but never to Rights having tractum futuri temporis which cannot be carried by poynding or Arrestment but by Appryzing or Adjudication as Tacks or Liferents when Assigned so that the jus mariti being a Legal Assignation and thereby falling under the Husbands single Escheat falls to the King and Donator by the Rebellion and cannot be taken away by an Appryzing pesterior to the Rebellion Which the Lords found Relevant and preferred the Donator Mr. George Iohnstoun contra Parichloners of Hodony Eodom die MR. George Iohnstoun having Right to a Tack set by the Parson of Hodony for his Lifetime and three years thereafter and having used Inhibition pursues the Possessors of the Lands who alleadged Absolvitor because the Tack is null being set for more nor three years without consent of the Patron by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years The Defender opponed the Act of Parliament declaring such Tacks simply null as were set for more then three year The Lords Sustained the Tack for three years as allowed by the Act of Parliament Râ—bert Thomson contra Earl of Glencairn Iuly 21. 1668. RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work wherein he was Imployed by the late Earl for his Lodging and Yeards when he dwelt in my Lord Oxfoords House It was alleadged for the Earl that the Imployment being a Direction was only probable scripto vel juramento The Lords before answer having ordained Witnesses to be Examined and their Testimonies being clear and pregnant that the late Earl did imploy the Pursuer in this Work and called for him frequently and ordered the Work from time to time they Sustained the Witnesses in the Probation and found it proveâ— It did not appear that this Pursuer was within three years of the Work but the Defender did not insist in any Defense thereupon Patoun contra Patoun Eodem die PAtoun in his Sonâ— Contract of Marriage Dispones to him his Estate and the Tocher was payable to the Father after the Contract and before the Marriage the Father takes a Bond of 2800. Merks from his Son the Wife and her Brother pursues a Reduction of this Bond as fraudulent contra bonos more 's contra pacta dotalia It was alleadged for the Father that he might very lawfully take a Bond from his Son for provision of his Children after the Contract and before the Marriage having Infeft his Son in his whole Estate which was worth 1000. Merks yearly and getting but 2500. Merks of Tocher and having some Debt and many Children It was answered that the Estate was not worth 600. Merks of Rent and the Fathers Liferent of 400. Merks reserved so that the Annualrent of this Bond would exhaust the remainder and they would have nothing to live upon The Lords having considered the Contract and Alleadgances thought that it was not sufficient to annul the Bond that it was after the Contract and before the Marriage if there was any reasonable cause Therefore and before answer ordained the Commuuers at the Marriage to be Examined whether it was communed and agreed that the Tocher should be accepted for fâ—tisfaction of the Debt and Bairns Portions and they having Deponed Affirmative The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage the Estate being very mean Sir Iohn Weems contra Campbel of Ednample Eodem die SIr Iohn Weems having Charged Ednample for Maintainance due in Anno 1648. He Suspends on this Reason that upon consideration of the burning of his House in the time of the Troubles he got an Exemption and Discharge from the King and Parliament Anno 1651. It was answered that that Parliament was Rescinded and the Charger had a Commission to uplift all Maintainance in Anno 1648. from the Heretors notwithstanding of any exemptions granted by these pretended Parliaments and their Committees The Suspender answered that the Act Rescissory has an express Reservation of all privat Rights acquired by Authority of these Parliaments for the time and so this Exoneration of his becoming his privat Right falls not by the Act Rescissory and as to the Act of Parliament and Commission to the Charger it must be understood salvo jure and cannot take away the Suspenders anterior Right acquired Which the Lords found Relevant and Suspended the Letters and found that the Suspenders Exoneration was not taken away either by the Act Rescissory or by the Act and Commission in favours of Bogie Lord Rentoun contra Laird Lamertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lamertoun as Representing his Father for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Fathers Commission by which he medled so that having done by publick Authority for the time in relation to the War and differences of the time he was secured by both these Acts. The Pursuer answered that the Act of Pacification and that whole Parliament was Rescinded and the Act of Indemnity had an express exception of all that medled with publick Monies of Fines Forefaultors or Sequestrat Estates and had applyed the same to their own use and had not duly counted therefore and the Pursuer insisted for what the Defenders Father had applyed to his own use or had not duly counted for The Defender Duplyed that his Father had duly counted for his whole Intromission and had made Faith to the Committee of Estates particularly that he had truly given up his Charge without omission and thereupon was Discharged The Pursuer answered that he had instructed much more Intromission and was content to allow the particulars in the Compt produced and craved the superplus which he had now proven by Witnesses adduced before answer and as for the Oath it could only be understood as an Oath of Credulity like that of Executors Confirming Testaments which doth
Reversion and the Liferents in favours of Mr. Iohn and also his own power of preference of the Creditors and Mr. Iohn his Infeftment upon the Disposition whereupon he alleadged that he ought to be preferred to the Mails and Duties because he stands publickly Infeft by vertue of the said Disposition before any Infeftment in the Person of the Pursuer It was answered for the Pursuer that the Infeftment produced cannot Exclude him because it is expresly granted for satisfying of the Sum whereupon his Infeftment proceeds It was answered for Mr. Iohn Prestoun that he having a power to prefer any Creditor he pleased he payed other Creditors to the value of the Estate whereby Newman is excluded It was answered for Newman that this Disposition was fraudulent and fimulat in prejudice of lawful Creditors whereof he has Reduction upon the Act of Parliament 1621. as being granted by a Brother to another with a power of preference of Creditors at the Purchasers option which Clause is altogether null especially as to the preferences done since lawful Diligence was used by this Pursuer by Horning Inhibition Arrestment and Appryzing and as no Debitor can so prefer himself so neither can he give such a power to any other and therefore the Pursuer ought to be preferred to all the Creditors conform to his Diligence It was answered for Mr. Iohn Prestoun that there being no Diligences done before the Disposition by any Creditor Craigmiller might Dispone being for an onerous Cause as he pleased and might prefer one Creditor to another 2dly Albeit this power of preference were not simply to be allowed after Diligence done by Creditors to prefer others to them Yet it ought to be Sustained in so far as Craigmiller might lawfully have done viz. to prefer Mr. Iohn for the Sums due to himself and for his relief of such Sums as he was Cautioner in The Pursuer answered that such a Disposition was not made nor doth this Disposition any way relate to Mr. Iohns Sum and his Relief but generally and equally to all and there is no difference but the unwarrantable power of preference which can have no effect after Diligence done The Lords found the power of preference not to be Sustained as to any other Debts then to such as were due to Mr. Iohn himself and for which he was Cautioner before the Disposition and found as to these that the power of preference was lawful and valide and was equivalent to this Clause with power to Mr. Iohn to satisfie himself and those to whom he was Cautioner primo loco Wallace of Galrigs contra Mckernel Ianuary 9. 1669. UMquhil Wallacâ— of Galrigs being alleadged to have given a Seasine propriis manibus to his second Wife of two Chalders of Victual The Lords Sustained the Seasine without any other Adminicle But that the Wife had quite her former Liferent by a former Husband in favours of Galrigs whereupon Galrigs offered to improve the Seasine by the Witnesses insert which being four two Deponed positively that they were never Witnesses to a Seasine given by Galrigs to his Wife and the third Deponed that he remembred not that he was Witness the fourth Deponed that he was Witness but said that this Seasine was in Summer whereas it bore to be in Winter the Nottar abode by the Seasine but was not Examined The Lords found the Seasine improven but would not Examine the Nottar nor any other Person mainly in consideration that the Seasine was prâ—priis manibus without any other Adminicle otherways the Nottar and one Witness affirming the Lords would have Examined the Nottar or any other persons or Evidences for astructing the verity of the Seasine George Hume contra Seaton of Menzies Ianuary 13. 1669. GEorge Hume as Assigney by the Earl of Wintoun to a Bond granted to the Earls Factor for his behove having Charged thereupon The Creditor Suspends in Discussing whereof it was alleadged for George Huâ—â— that he ought to have Annualrent because the Suspender by a missive Letter produced written to the Umquhil Earl of Wintoun obliged him to pay Annualrent for the time by gone and therefore ought to continue the same till payment The Suspender answered it contained nothing as to the Annualrents in time coming The Lords found Annualrents due from the beginning both before and after the Letter though they exceeded the Principal Sum seing once Annualrent was promised for some Terms Alexander Mckenzie of Pitglasse contra Ross of Auchinleck Ianuary 14. 1669. ALexander Mckenzie having Right to two Compryzings of the Lands of Auchinleck one in Anno 1644. and another in Anno 1647. which being alleadged to have been satisfied within the Legals and the matter referred to an Auditor who reported these Points to the Lords First Whether the Appryzer should Compt for the Mails and Duties so as to impute the same to both Appryzings as to years after the second Appryzing or to impute them wholly to the first Appryzing during its Legal and then to the second Appryzing during its Legal It was alleadged for the Appryzer that he having two Titles in his Person it was free for him to impute his Possession to either of them and yet he was so favourable as not to crave his option but to impute proportionally to both albeit in Law when Receipts are not specially as to one Cause electio est Debitoris 2dly When any payment is made by a Debitor to his Creditor indefinitly it is still imputed to the Annualrents in the first place before it can satisfy any Stock so that any satisfaction gotten by him must first be imputed to the Annualrent of both the Sums and then to the Stock of the first It was alleadged for Auchinleck that the Intromission could only be attribute to the first Appryzing First Because by that Right the Appryzer entered in Possession and cannot invert his Possession to a third Parties prejudice 2dly The first Appryzing est potior jure for if the two Appryzings were in different Persons he that had the second could never attain Possession against the first 3dly In dubio solutio est imputanda in duriorem sortem and therefore to the first Appryzing for if imputation be made to both the first Appryzing will not be satisfied within the Legal and the Debitors Right will be taken away which is most infavourable 4thly The Appryzer as he did not Possess by the second Appryzing so he could not because the first Appryzing carries the Right of Property and the second carries only the Right of Reversion The Lords found the Possession was only to be attribute to the first Appryzing and not to the second while the first were satisfied The next point was that it was alleadged the Appryzer had sold a part of the Lands within the Legal and therefore the worth of these Lands ought to be allowed in satisfaction of the Sums It was answered that the Appryzer could not Dispone the Lands simply but only his Right of Appryzing which
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
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
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
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
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
drayning of this Loch Raith of Edmonstoun Contra the Laird of Niddrie Iuly 4. 1661. JOhn Boid Merchant in Edinburgh as Assigny constitute by the Laird of of Wolmet to a Decreet obtained at his Instance against Niddrie for payment of the sum of 7000. merks for which he gave Band to Wmquhil Wolmet for Iames Reith of Edmonstoun his good brother as an Asythment for the Mutilation of the Laird of Wolmet by Edmonstoun who cut off Wolmets left hand Niddrie Suspended on double Poynding called the said Iohn Boyd Iean Dowglas Umquhile Wolmets Relict and the said Iames Reith It was alledged for Niddrie and the said Iames Reith that the Decreet did bear the sum not to be payable till their were delivered a sufficient Letter of Slaine and Remission for the Mutilation but the Letters of Slain now produced is not sufficient because it did bear only the Remission of an accidental Mutilation and this Mutilation being of purpose 2dly It was only subscribed by Wolmets Heir and not by his Wife and their Children It was answered for the Chargers that there was no necessity of a Letter of Slains for Mutilation but the Remission alone was sufficient 2dly This sum was granted for Asythment to Umquhile Wolmet himself in his Lifetime and the Decreet mentioned a Letter of Slains granted by him 3dly Any Interest his Wife or Bairns could have was only for the Asythment of their Damnage which could be none seeing Wolmet was a Landed Gentleman and did not intertain his Family by his handie work The Lords Repelled the Reason of Suspension In respect of the Answer on the Decreet and Letters of Slain produced which they found Sufficient It was also alledged be the said Iean Dowglas that she ought to be preferred to the said Iohn Boyd because she had arrested the sum long before his Assignation It is answered for Boyd the Arrestment was upon a dependence and loosed and there is yet no Decreet upon the Dependence It is answered for Dowglas That the loosing of the Arrestment would have freed Niddrie if he had actually payed the sum but it being yet in his hand it ought to prefer her as Creditor doing first Diligence especially seing Wolmet the time of the Assignation was Rebel and Bankrupt The Lords preferred the Assigny in respect there was no Decreet Extracted upon the Dependence Reserving to the Arrester after sentence to reduce upon the prior diligence as accords c. Tailizfer Contra Maxtoun and Cuninghame Iuly 6. 1661. IN the Competition betwixt Tailzifer Maxtoun and Cuninghame mentioned Iune 29. Where Tailzifer was preferred to the Stock of the sum consigned for the Redemption of the Wodset in Question It was further alledged for Maxtoun that he ought to have a share of the Stock because he produced a mutual Band betwixt himself and William Clerk Tailzifers Author who apprysed the Wodset whereby they were oblidged to to Communicat the Profit that should accresce to them by their Actions intented and to be intented upon their Rights of Iohn Ker the common Debitors Lands without opposing one another upon their several Apprysings Tailzifer answerd non relevat against him who was a singular Successor this being but a personal Band of his Author and could not affect his Real Right of Apprysing it was answerd for Maxtoun First Albeit Apprysings and Infeftmens thereupon be Real Rights in some respect yet in many others they were only accompted as Personal Rights at least might be taken away by Personal deeds as by Intromission with the Maills and Duties of the Apprized Lands or by payment of the Sums therein contained which would be valid against singular Successors without necessity of any Consignation It was answered for Tailzifer That this is by reason of the Act of Parliament 1621. Declaring Apprysings satisficable by Intromission with the Maills and Duties and so to expire ipso facto but cannot be streached beyond the Tenor of that Statute contrair the nature of Real Rights The Lords repelled the alleadgeance for Maxtoun upon the Band for Communication which did not affect singular Successors It was further alleadgedâ— that this mutual Band was Homolgat by Tailzifer in so far as he had concurred in all pursuits with Maxtoun conform to the Tenor of the said Band and had uplifted the Mails and Duties accordingly It was answered for Tailzifer non relevat to infer Homologation seeing these Deeds are not relative to any such personal Bond which Tailzifer never knew and therefore could not Homologat whereupon Tailzifers oath was taken if he knew the same who denyed And thereupon the alleadgence was repelled Maxtoun farther alleadged that albeit there had been no more but the concurrence judicially it was sufficient to communicat the Appryzings It was answered for Tailzifer non relevat unless the concurrence had born expresly to communicat for the concurrence only to exclude third Parties would never infer the same The Lords Repelled Maxtoun's Alleadgences and adhered to their first Interlocutor Colledge of St. Andrews Supplicant Iuly 16. 1661. THE Colledge of St. Andrews Supplicat that in respect their hail Rents were arrested at the Instance of Doctor Gleig and thereby they were not able to intertain their Table and Bursers craved the arrestment to be loosed without Caution in respect they were an Incorporation for whom no body would be Caution The Lords after debating the Case amongst themselves whether arrestment could be loosed without Caution or upon juratorie cautione thought it could not but in this case they allowed the same to be loosed the Masters of the Colledges giving a Bond to bind themselves and their Heirs personally for what should be uplifted by any of them whereby every Person stood Caution for his own Intromission for the University they not being otherwayes bound personaliter but only secundum officium Relict of Robert Fleming contra Forresters Iuly 17. 1661. THE Relict of Robert Fleming Bailzie of Edinburgh as his Executrix Charged Forresters the Bailzies Sister Daughters to pay 1600. merks due by their Father by Bond and decerned against them as lawfully Charged to enter Heirs to him nineteen years ago and now eiked to the Bailzies Testament by the Charger whereupon She obtained Letters of Horning Summarly the Suspenders alleadged the Letters ought to be Suspended simpliciter because they offered a Renounciation to be Heirs The Charger answered non relevat post sententiam et tantum temporis Intervallum The Suspender replyed they were Minors the time of the Decreet and that the delay of time was because their Uncle never Insisted and it was like purposed not to Insist The Charger answered they were now Majors and did not reduce intra annos utiles The Lords admitted the Renunciation Laird of Buchannan contra Oseburn Iuly 24. 1661. THE Laird of Buchannan Pursues Reduction of a Decreet obtained against him at the Instance of Lieutennent Collonel Oseburn in Anno 1653. upon many Reasons mainly because the ground of the Decreet was only a Bill not past the
Signet at the Instance of umquhil Mr. William Cunninghame continued in Oseburn after his decease without transferring for rectifying or rescinding a minute of Disposition of the Lands of Ballindalloch by Mr. William to Buchannan put in the hands of Mr. David Buchannan who gave his Ticket that the same should be keeped until it were perfeited according to Equity and Justice and Deponed that the Point to be rectified was only the warrandice which in the Minute was absolute upon which Bills the then Judges ordained the Parties to submit who accordingly submitted to four Friends and two Overs-men who were to report February 10. 1653. Which Oversmen did unwarrantably report after the expyring of the said Reference upon the 19. of February to Buchannans great prejudice contrair to Justice in so far as they ordained him to pay Oseburn sixteen years Purchase for the price of the Lands without Production or Debating of the Parties Rights or calling or hearing the Arbiters and with warrandice from Oseburn and his Goodfathers Fact and Deed only albeit the Lands were insecure holden Ward and lying in the Highlands And found the Rental of the Lands to be five thousand merks yearly without distinguishing between Stock and Teind though the Testimony of the Witnesses proves not above three thousand merks beside the Teind of which Lands Oseburn nor his Good-father had neither Title nor Possession of Buchanbeg Buchanmore and Ballochroon which are parts of Ballandoloch whereunto the Judges did unjustly interpone their authority superceeding twenty thousand merks until the Right of Buchanbeg Buchanmore and Ballachroon were discussed and whereas the Decreet bears Buchannan to have consented he denyed the same neither was there any minut of Process taken upon the day of his alleadged consent but by an Ordinance of the Judges half a year thereafter made upon their memory which cannot prove against him not being subscribed by him at least he might have resiled re integra before extracting the Decreet as he did The Defender answered that whatever was the ground of the Processes yet there was a Submission subscribed by both Parties and a Report by the Oversmen conform which is express contrair to all that is alleadged and is sufficient and full Probation Arbiters having so great Trust. And the Decreet beareth the Report made upon the 9. of February And albeit the minuts of Process were wanting or contrary nihil est because the Clerk being publicus proto notarius his solemn Instruments make full Probation and the minuts are but the notes taken by him for remembrance till the full Instrument be compleated against which Parties may object at Extracting as not conform to the Warrands but not thereafter otherwayes the Clerks by altering or losing the minuts might destroy all Decreets which are the greatest Securities of the Kingdom The Report also bears Inspection of the Parties Rights and considâ—ration thereof and of the Debates and Informations given in by either 〈◊〉 in write And if Buchannan saw not Oseburns Rights it was his fault that called not for them out of the Overs-mens hands where they long lay being expired Appryzings and Infeftments against Glengarnock the ancient Proprietar and against the Lairds of Buchannan themselves so that the Report being a Decreet Arbitral and Confirmed by the Judges and consented to by Parties is most solemn And as to the Consent it was Judicial and Palpable by joyning hands and needed no Subscription it be-being most ordinary that Decreets bear Consent of Parties especially when the Consent quadrateth with and is conform to a Process as the compearances of Parties whereby Decreets became irreduceable accepting of Offices of Tutory or Curatory and so if Buchannan had appeared and said for fourty thousand pound non faciam vim but as for the twenty thousand merks the Right of these Lands would be first cleared It would have been an unquestionable consent albeit contrary or extrinsick Acts require Subscription and ex abundanti have the same yet they need not seeing publica scriptura by the Instrument Judicial of the Clerks of Supream Court is more Solemn than a private Write by Parties Subscription and albeit de recenti at the same time when consents or offers are proposed Parties may resile yet ex intervallo they cannot For there is only locus penitentiae in Dispositions or Tacks of Lands where Writ is requisit not only as an Evidence but as a solemnity accomplishing the Right But in other Pactions and Promises where Write is not essential there is no place therefor The Lords having considered the Decreet and whole Warrands thereof Reduced and turned the same in a Libel ordained O seburn to proceed upon the two Supplications on which the Decreet was pronounced and continued his Possession till the close of the next Session for they found beside many informalities the sentence and Report of the Overs-men to have been after expyring of the Reference by the Warrand thereof subscribed with their hands And as to the Consent they found by Signature of Process under all the then Judges hands that there was no minut of the said Consent at the time it was alleadged to have been but half a year thereafter made up of their memories Upon which two Points mainly they Reduced without Discussing the other Alleadgences neither had they respect to Buchannans Homologations of the Arbiters Sentences by taking out Diligences conform and adducing Witnesses to prove the Rental nor by acquiescing in his Bills to the price because there was alwayes some qualities in his Consent Laird of Lamertoun contra Earl of Levin and Alexander Kennedy Eodem die THE Laird of Lamertoun having wakened an Improbation against Alexander Kennedy and the Earl of Levin for improving of several Bonds exhibite by the said Alexander Kennedy and made use of by the Earl of Levin Lamertoun craved that the Earl of Levin might bide by the Bonds seeing he made use thereof the Earl offered to abide by them qualificateâ— viz. that he made use of them as believing they were true Bonds and that he was not accessory to any falshood or forgery thereof It was alleadged he ought to bide by them simply for such qualities were contrair to the Act of Parliament declaring users of false Writs and abiders by them to be accounted as accessory thereto many of the Lords were of opinion that he should abide by them simply but that he might protest under the foresaid quality in respect it was not proper to the Lords to consider the consequence of his biding by the Bonds which was Criminal yet alterius fori yet it was carried that he might bide by them qualificate and therefore he was ordained to give it in in Write that the Lords may consider how far they will allow it Mitchels contra Iohn Hutchison Iuly 24. 1661. JEAN and Marion Mitchels having â—pursued Iohn Hutchison in Anno 1659. for Reduction of a Decreet obtained by him against them as Heirs to their Father upon Minority and Lesion and
Annat it was not confirmed and could be extended to no more but the half of 1654. The Pursuer answered to the First That the Presbytrie had no power to dispose of that Steipend by the Act of Parliament 1644. because the Defunct was only Suspended ab officio which makes not the Kirk Vaick maxime seeing the Defunct was Reponed by the Synode and never desposed and as to the Decreet at the Defenders Instance it was given without calling the Defunct whom he was in mala fide to misken To the second That the Act of Prisbytrie cannot prove unless it had been subscribed by the Defuncts own hand matters of Steipend not being the proper work of Presbitries but proper for civil Judges especially seeing the Defunct was Suspended for Preaching for the Engagement 1648. Against which that Presbytrie protested and so the Act being Eairtester is the more suspect To the Third The Annat not being in bonis defuncti but indulged by the Law to the Wife Bairns and nearest of Kin to the Defunct Minister and so originally their Right though upon occasion of his Service the same needs no Confirmation and the Defunct having right proprio jure to the whole Year 1653. Surviving both Terms Anne signifying a Year further must be the heal Year one thousand six hundred fifty and four The Lords Repelled the first Defense and found the Suspension of the Minister not to make the Steipend Vaccand and had no respect to the said Decreet whereto the Defunct was not called They found also the second Defense not probable by the Act of Presbytrie and found that the Anne needed no Confirmation but that the Anne did only extend to half a Year more then the Defunct had right to proprio jure Laird of Lamirtoun contra Alexander Kennedy Farl of Levin Eodem die EOdem die The Laird of Lamertoun upon the Improbation mentioned Iuly 24. Did then desire that Alexander Kennedy producer of the six Bonds quarrelled might be examined in presentia and his Person Sequestrated and Secured and warrand granted to examine new Witnesses The Lords superceided to give answer till they considered the Process and now having considered the same and finding that the direct manner of Improbation was not Competent because the Witnesses were dead and that the Pursuer had insisted in the Indirect manner and had obtained warrand for Inspection of the Dispositions taken in the Cause both of Alexander Kennedy himself and of the Witnesses then adduced and had given in Articles of Improbation and the Defenders Articles of Approbation Replyes and Duplyes both which being considered by the Lords they found grounds of Suspitionâ— and therefore granted all the desires of the Supplication and Ordained Alexander Kennedy to be keeped close Prisoner in the Tolbooth till he were re-examined and Witnesses hinc inde to be examined by some of the Lords in the Vaccancy upon what either Parties should desire which seemed periâ—ent to the saids Lords Examinators Dame Elizabeth Fleming contra her Children November 14. 1661. DAme Elizabeth Flemming Relict and Executrix to Umquhile Malcome Flemming Merchant in Edinburgh and Tutrix dative to his Bairns having formerly pursued an Action of Exoneration against her Children in which she gave up as an Article of her Accompt a hundred pounds Sterling payed by her to Patrick Scot of Langshaw whereupon she had retired her Husbands Bond and taken a discharge upon the back thereof and had taken her Husbands name therefrom whereanent the Defenders alleadged That this being a cancelled Paper could establish no Debt against them neither could Patrick Scots discharge prove against them that it was a debt restand by their Father and payed since his death as Patrick's Testimony and Oath could not prove much less his Declaration in wri whereupon the Lords had ordained Patrick Scots Oath to be taken ex officio upon the truth of the Debt and when it was payed to him and by whom who having Dâ—poned that it was payed by this Pursuer after her Husbands Death The Lords did allow the Article Now the Cause being wakened at the Pursuers instance and Sir Iohn Gibson now her Husband one of the Clerks The Defenders further alleadged that Patrick Scots oath ought not to have been taken and could not be sufficient to prove against them that this was a true Debt and payed by their Mother but it behoved to be presumed if it was a Debt at all to have been payed by their Father and the Bond cancelled by him and left amongst his writs and found by their Mother there and now after her second Marriage made use of against her own Children albeit she made no mention of it before And therefore the cancelled Bond being no Writâ— subscribed by the Defunct cannot prove nor can Patrick Scot's Discharge or his Oath make it up nor any other thing except the Defenders own Oath or Writ seeing Witnesses are not admitted in cases of this Importance Secondly though it were Evidently and Legally Instructed and Proven yet the Debt was payed by the Mother she can have no allowance of it because she payed Voluntarly not being Tutrix nor Executrix at that time and cancelled it and took a discharge of it and so it is both unwarrantably done and must be presumed to have been of purpose to gift it to her Children out of her opulent Fortune having given above fourty thousand pounds to the second Husband The Pursuer answered That the alleadgances were most Irrelivant for as to the first anent the Probation of the truth of the Debt and payment by the Executrix It is sufficiently proven by the cancelled Bond at which the Witnesses Names are yet standing by Patrick Scot's Discharge and Oath already taken who is a Person inconcerned and above all exception and if need bees it is offered to be proven by many Witnesses above exception who saw the Bond un-cancelled after the Defuncts Death which is abundantly sufficient to take away the Presumption that it was retired and cancelled by the Defunct himself and that such Probation was Legal and Warrantable was formerly found by the Lords of Session upon the 7th of March one thousand six hundred twentie nine betwixt Falconer and Blair where an Executor pursuing the Hetr for relief of a moveable Debt produced only the Defuncts cancelled Bond without a discharge and these same points being alleadged The Lords found that the Action ought to be sustained and the truth of the Debt and the Payment after the Defuncts decease to be proven by the Creditors Oath or after his decease by the Heirs Oath and it is unquestionable That the Lords in matters obscure as to the Probation may ex â—obâ—li officio take all manner of Tryal for finding out the Truth by Oaths of Parties Witnesses or any other manner of way in matters of greatest moment which being here already done and the Testimony so clear and of so unquestionable a Person as Patrick Scot there remaines no doubt but the Debt was
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
found by the Depositions of the Witnesses that that part of the Town of Inverness on the Northâ—side of the Water only had been in Possession by casting Peats in the Moss contraverted and that the same is a part of Month Kaplock and that the Pursuer had proven the Right of Property therein And therefore ordained the Town of Inverness on the other side of the Water to desist from the Moss contraverted and granted Commission to seâ—tle the Parties anent their place in casting in the Moss or in case of variance to Report Iean Dalmahoy contra Hamiltoun of Binnie December 6. 1661. JEan Dalmahoy Charges Alexandee Hamiltoun of Binnie for a Tack-Duty of 2000. merks due to her for her Liferent-lands he Suspends on this Reason that he has taken the benefit of the late Act of Parliament between Debitor and Creditor and this Sum being above 2000. merks stands thereby Suspended for six years The Charger Answers non relevat because the Act extends not to Rents or Tack-Duties of Lands albeit exceeding 1000. Pounds but only to borrowed Sums and other money bearing Annualrent which in Recompence of that forbearance are accumulat with the Principal Sums The Lords found the Act not to extend to Rents or Tack-duties and therefore repelled the Reason Iames Hoom contra Abraham Hoom. Eodem die JAmes Hoom as Assigney to a Reversion and order of Redemption used by the Earl of Hoom against Abraham Hoom pursues Declarator of Redemption and Removing in the same Process The Defender alleadged Absolvitor because the Reversion expressed not Assigneys and therefore the Defender cannot be oblieged to renounce to the Pursuer an Assigney Secondly At the time of the Confignation the Earl required the Wodsetter to Subscribe the Renounciation to a blank Person upon a back Bond declaring the same to the Earls behove which he was not oblieged to do by the Tenor of the Reversion Thirdly No Declarator till the Earl produce the Sum at the Bar seeing he lifted it himself The Lords found that albeit the Reversion expressed not Assigneys yet seeing the Order of Redemption was used by the Earl himself the Assigney had sufficient Right but Decerned the Defender to Renounce only in favour of the Earl and his Heirs but not to Dispone to any other Person as the Earl desired and Declared there should be no Decreet extracted till the Consigned Money were produced and given up neither did they decern in the removing till the Parties were further heard thereupon Alexander Tailzifer contra Sornebeg Eodem die ALexander Tailzifer as Heir appearand to umquhil Tailzifer of Redheus Pursues Mistresse Margaret Forrester his Uncles Relict and Iohn Schaw of Sornebeg her Husband for Exhibition ad deliberandum of all Writs granted not only to the Defunct but also granted by the Defunct to his said Relict or any other Person The Defender alleadged non relevat for Writs granted by the Defunct to the Defender or other Persons because albeit the Pursuer were entered Heir he had no interest for Exhibition thereof unlesse there were Clauses in his favour therein nemo tenetur edere instrumenta contra se and if this were sustained it were the way to make patent all the Charter Chists in Scotland at the Instance of appearand Heirs under pretence to Deliberat but in effect to pick Quarrels and find the weaknesse thereof The Pursuer answered maxime relevat for seeing the Law gives Heirs the benefit of Deliberation they must have the necessary means thereof by Inspection not only of the benefite but also of the burden of the Defunct without which they cannot know num sit damnosa haereditas Especially in this case against a Relict who probably might have had Influence upon the Defunct Husband to grant Right to her that might Evacuat the Heritage And in this case the appearand Heir had a more large Interest to crave Exhibition nor the Heir Entered who could only crave Exhibition for Delivery Transumpt or Registration and so behoved to Libel a peculiar Interest but the appearand Heirs Interest is only ad deliberandum And therefore the Exhibition as medium thereto must reach to all whereupon he ought to Deliberat Especially the Defuncts Debt and albeit it be true nemo tenetur edere instrumenta contra se to found or give Title to the Pursuers Action Yet he having Title by the Law to crave Inspection for Deliberation hath good Interest Yea if he produce a Title in himself he may even force the Defender to Exhibite Writes ad probandum by an incident as well as third Parties to whose Writ he hath no Right save only to bear testimony for him The Lords having heard this Case in their Presence because the Point had been variously Decided as to Writs granted by Defuncts found the Libel Relevant not only for all Writs granted to the Defunct but also granted by the Defunct to his Relict Bairns or Servants in his Family at the time of his Death being such Writs upon which no Infeftment followed for as to these they thought the Registers may give as much Evidence as was sufficient to Deliberate and would not upon this ground open Charter Chists for shewing real Rights and the plurality carryed that even Personal Rights granted to strangers should not be produced hoc modo severals being of the opinion that Debts Discharges and Personal Rights should be thus Exhibite In respect that Heirs in Scotland were lyable simpliciter for all the Defuncts Debts And therefore should have Inspection as well of his Debts as of his Estate as was found before between the Lairds of Swintoun and West-nisbit observed by Dury February 26. 1633. Katharine Kinross contra Laird of Nunthil December 10. 1661. KAtharine Kinross having Charged the Laird of Nunthil for payment of a Bond granted to her first Husband and the longest liver of them two and their Heirs which failzing his Heirs he Suspends on this Reason that she is but Liferenter and the Defunct being Infeft in Fee she would not Renounce but the Heir Which the Lords Sustained and found the Letters only orderly proceeded for the Annualrent The Earl of Roxburgh contra Mcdowal of Stodrick December 11. 1661. THE Deceased Earl of Roxburgh having obtained Decreet of the Commission for the valuation of Teinds in Anno 1635. against Mcdowal of Stodrick this Earl having Right from the Deceast Earl pursues Stodrick for payment of the valued Duty The Defender alleadged no Process because he had intented Reduction of the said Decreet and Improbation of a Procuratory mentionated therein to have been produced by Mr. Robert Trotter warranding him to consent for Stodrick to that Valuation which is the only ground of the Decreet without either Dispute or Probation In which Reduction Terms are taken to produce and being prejudicial to this Action it must be first Discussed The Pursuer answered that there can be here no prejudiciallity which is only betwixt two Principal Actions but here res est judicata by a Decreet
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
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 there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
he expresly renunced the benefit of the Usurpers Act betwixt Debitor and Creditor and all such Acts made or to be made and oblidged himself upon Honour and Conscience not to prejudge Sir John of his bargain to which no subsequent Law could derogat unless it had been specially notwithstanding any such Paction Secondly The foresaid Act has an express exception That where such Acts made and to be made are Renounced the benefit of that Act shall not be competent to such The Pursuer Answerd to the first That Pactions or Renunciation of Parties cannot operat against a posterior Law Secondly The persuâ—t here is for restricting of a Wodset to the true Annualrent for all that was done in the Usurpers Act was to take Land in satisfaction and to delay payment but this Clause of the Act is nothing such and so is Casus Incogitatus which could not be held to be Renunced unless it had been exprest as to the exception in the Act it is not an Exception general to the whole Act but to the Antecedent part of the Act and this Clause anent Restricting of Wodsets is posterior to the Exception and not derogat thereby The Lords Repelled the Defense in respect of the Reply and found the Exception not to Derogat to the Posterior Clause concerning Wodsets Lord Burly contra Iohn Sime Ianuary 30. 1662. THE Lord Burly pursues Iohn Sime for intruding himself in a Coal-heugh wherein the Pursuers Author was infeft severally and not in the Land but only in the Coal with power to set down Pits through all the bounds of the Land The Defender alleadged absolvitor because he stood Infeft in the Lands lybelled with Parts and Pertinents and be vertue thereof was seven Years in Possession which must Defend him in Possession until his Right be reduced The Pursuer answered that the Defender could have no benefite of a possessory Judgement not being expresly Infeft with the benefite of the Coal in prejudice of the Pursuer who was expresly Infeft and Seased in the Coal and in possession of the Coals past memory The Defender answered there was no necessity of an express Infeftment of the Coal which is carried as part and pertinent as Craig observes in dieg de investituturis impropriis to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth and so being Infeft and in possession seven years he has the benefite of a possessory Judgement The Lords found the Defense Relevant but Repelled the same in respect of Interruption within seven years which was proponed Halbert Irwing contra Mckartney Eodem die HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleadged Absolvitor because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson to whom the Pursuer had given a Disposition of all his moveable Goods for relief of a Cautionry for which Mr. Robert first and now this Defender is Distrest Secondly He offers him to prove voluntar Delivery of the Oxen by the Pursuer to him for the cause foresaid But because the Pursuer hath summoned several other persons as Complices which are necessary Witnesses of purpose that he might exclude them from being Witnesses he desires they may be admitted Witnesses or otherwise Discust First that if they be Assoilzied they may be Witnesses The Pursuer answered to the first non relevat a Disposition unless there had been Delivery and albeit there had been an Instrument of Delivery yet it being dispositio omnium bonorum two years before the medling could be no Warrant for summar medling without Sentence of a Judge and gave only jus ad rem But specially the medling with the Plough Goods in time of Labourage when the Pursuer put other Goods before the Defender The Lords found the first Defense Relevant founded upon the general Disposition and Instrument of Possession and that the Disposition alone though without any possession had been sufficient against the Disponer ad vitandum spolium unless the Defender had Intrometted by violence being resisted by force But they proceeded not to the second Defense which doubtless was Relevant and the desire reasonable of Discussing the remnant Defenders First that they might be Witnesses if Assoilzied Yea it seems they could not be hindred to be Witnesses used for the Defender though they might be suspect Witnesses against him as being Interest to put the Spuilzie upon him for their own relief Sir Iames Cunninghame contra Thomas Dalmahoy February 1. 1662. SIr Iames Cunninghame pursues Thomas Dalmahoy and the Tennents of Pollomount to make payment to him of the Mails and Duties of the Lands of Pollomount resting at the Death of the late Dutches of Hamiltoun because she had granted Bond of 500. pound Sterling to the Pursuer to be payed after her Death and for security thereof had assigned the Mails and Duties of her Liferent Lands of Pollomount which should happen to be due at the time of her Death It was alleadged for Thomas Dalmahoy her second Husband Absolvitor because these Mails and Duties belonged to him jure mariti neither can he be lyable for this Debt jure mariti because it was not Established against him during the Ladies Life neither could be because the term of payment was after her Death The Pursuer answered that he did not insist against Thomas Dalmahoy as Husband but as Intrometter with the Rents of Pollomount due at the Dutches Death wherewith he hath medled since which could not belong to him jure mariti being assigned before the Marriage and if they could belong to him jure mariti yet it must be with the burding of this Debt The Lords Repelled the Defense in respect of the Reply for they thought a Husband albeit he was not lyable simply for his Wifes Debt post solutum matrimonij yet that he should have no more of the Wifes Means jure mariti but what was free of Debt and so behoved to pay her Debt so far as he enjoyed of her Means Belshes contra Belshes Eodem die IN an Account and Reckoning betwixt Belshes and Belshes concerning Executry The Lords found that the prices given up by the Defunct in his Testament of his own Goods should stand and the Executor be accountable accordinglyâ— seing there was no enorm prejudice alleadged as if the Defunct had prized the Goods within a half or third of the true avail to the advantage of the Executor and prejudice of the Wife Bairns or Creditors The Lords did also allow Aliment to the Wife out of her Husbands Moveables to the next Term albeit she Liferented an Annualrent payable at the next Term. Lord Melvil contra Laird of Fairin February 4. 1662. THe Lord Melvil pursues the Laird of Fairin for Warrandice of a Disposition of certain Lands aud Teinds sold to my Lord by him with absolute Warrandice and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleadged Absolvitor because this Distress was
Disposition in which there was an expresse Reservation of the Ladyes Liferent so that the Back-bond could import no more then securing of that Liferent The Pursuer answered these words conform to the Disposition were set upon the Margin of the Tickit which was all written by the Defenders hand and might have been added ex post facto 2. The Tickit behoved to import more then the Liferent because the Liferent was fullie and clearly reserved and oftimes repeated in the Disposition so that Clause had been frustrat Thirdly The oblidgment to deliver the Back-bond to the Ladies Husband after her Death could not be understood to be only in relation to her Liferent which and the Husbands interest should cease by her Death The Lords found the Tickit sufficient to instruct Trust but because the Terms of the Trust were not clear They before answer in Relation to the Probation of the Terms thereof Ordain the Parties to Compt and Reckon upon all Sums due by the Lady to the Defender in contemplation of the Trust that the same might be allowed and satisfied to the Defender before he be denuded Iames Slumond contra Wood of Grange Eodem die JAmes Slumond having charged Iames Wood of Grange to pay a Sum wherein he was Cautioner for the Laird of Balcaskie to Williiam Smith merchant in Edinburgh who constitute Richard Potter Assigny who transferred the same to the said Iames Slumond and Suspends The reason of Suspension was because this Bond was payed and retired by Balscaskie the principal Debitor who took a blank Translation thereto from Potter the Assigny which Translation with the Bond it self were surreptitiously taken out of his Coffer by Iames Hay who filled up this Chargers name therein likeas the Suspender produced a Declaration of Potter that the Sum was payed â—o him by Balcaskie and therefore the Suspender craved that the Oaths of this Charger the said Iames Hay and Potter and also the Witnesses who were present at the payment of the Sum might be taken before Answer Which the Lords granted albeit the Charger had the Translation for an oneâ—rous cause Children of Monsual contra Laurie of Naxweltoun February 14. 1662. THE Children of the Laird Monsuel as Executor to their Father pursues Laurie of Maxwelltoun for a Sum due by him to the Defunct who alleadged Compensation upon a Debt due by the Defunct Assigned to the Defender by the Defuncts Creditor after the Defuncts Death and intimat before any Citation or Diligence at the instance of any other Creditor The Pursuer replyed that Debt compensed on cannot take away this Debt pursued for solidum because the Defender as Assigny can be in no better Case then his Cedent and if he were now pursuing he would not be preferred fore his whole Sum but only in so far as the Testament is not yet exhausted or other prior Diligence done for an Executor having but an Office can prefer no Creditor but according to his Diligence much less can any of the Defuncts Debitors by taking Assignation from any of the Defuncts Creditors prefer that Creditor whose intimation is no Legal Diligence The Lords found that the Defender could be in no better Case then the Cedent and could have only compensation in so far as the Inventar was not Exhausted or prior Diligence used they found also that a Decreet against a Defender for making arrested Sums forthcoming at the Instance of an of the Defuncts Creditors was null because the Executor Creditor was not called thereto albeit Decreet was obtainedâ— at the Instance of that Creditor against another Executor in a former Process Lady Muswal Elder contra Lady Muswal Younger February 15. 1662. IN a Contention betwixt the Lady Muswall Elder and Younger upon two Annualrents out of one Barony The Lords Ordained the first Annualrenter to do Diligence within twenty days after each Term that after that time the second Annualrenter might do Diligence or otherwise at her option Ordained the Lands to be divided conform to the Rents Proportionably as the two Annualrents The second Annualrent and the first to take her choise Laird of Pitfoddels contra Laird of Glenkindy Eodem die IN the Revieu of a Decreet in one thousand six hundred fiftie nine at the Instance of the Laird of Pitfoddels against the Laird of Glenkindyâ— in which Decreet Glenkindy Cedents Oath having been taken that the Cause of the Bond was for an Assignation to a Wodset which was excluded by Apprizing after Report whereof Glenkindy the Assigny alleadged that his Cedents Oath could not prejudge him and it being Answered that he made no Objection before the Oath taken neither could make any Just Objection because the Oath of the Cedent any time before Intimationâ— is sufficient against the Assigny Glenkindy Answered that his being called in that Process as Assigny and compearing and Insisting as Assigny was an intimation which was before taking of the Oath which was found Relevant in the said Decreet and now rescinded by the Lords upon this consideration that the Citation being ad hunc offectum to instruct the cause of the Bond the insisting in that pursuite could not be such an intimation as to exclude the Cedents Oath Earl of Bedfoord contra Lord Balmirino February 18. 1662. THE Earl of Bedfoord for satisfaction of his Tocher due by his Father in Law the deceast Earl of Sommerset caused Adjudge in the name of a Person intrusted all Right compent to the Earl of Summerset of the Estate of Iedburgh and being Assigned to the Adjudication pursues the Lord Balmirino for denuding himself of two Apprisings of the Estate of Jedburgh conform to three Back-bonds produced granted by umquhile Balmirino to Summerset acknowledging that he had acquired Right to these Apprysings with Summersets own Money and therefore oblidged him to denude himself thereof The Defender alleadged that his Father being intrusted by the late Earl of Summerset to acquire the Estate of Iedburgh and having the Fee thereof in his Person the Defender is not oblidged to denude himself untill he be Re-imbursed and satisfied of all Sums of Money which after the said Back-bonds he payed for Summerset or advanced to Summerset which can only be accompted to have been in Contemplation of the Trust and is particularly so exprest in Summersets Letters produced bearing that Balmirino should be satisfied of what was due to him out of Tiviotdale whre the said Estate of Iedburgh lyes The Pursuer answered non relâ—vat against him as a singular Successor 2dly Non competit by way of Exception but the Defender hath only Action therefore especially this Trust being fidei-comissum which is a kind of Deposition in which there is neither Compensation nor Retentation competent 3dly there can be here no Compensation because the Debt is not Liquid The Defender answered his Defense stands must Relevant which he founds not upon Compensation but upon the Exception of Retentation which is competent in all Mandats and Trusts by which as there is a
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
his mark it being reasoned amongst the Lords whether this could be accompted a Writ Probative and it being alleadged an Astruction thereof that this Johnstoun being a Merchant and a Drover was accustomed ordinarly so to Subscribe and to give Bills for far greater Sums then this The Lords thought it would be sufficient amongst Merchants though it wanted Witnesses but being unwilling via ordinaria to allow of such a Writ or Subscription for which we have neither Custom nor Decision Yet in respect of the Decreet and of the alleadged Custom so to Subscribe They before answer ordained the Oaths ex officio to be taken of the Writer of the Bill if he could be condescended on by either Party and of the Witnesses who saw Johnstoun Write this mark or receive the Money for which the Bill was granted Creditors of Kinglassie Competings Eodem die IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie It was alleadged for William Hume who had Right to an Annualrent that he ought to be preferred to Joseph Lermont who stood publickly Infeft in the Property in Anno 1655. because albeit the Annualrent of it self was base yet long before it was validat by a Decreet for Poynding of the Ground It was answered that there was no way to make a base Infeftment valide but by Possession here there could be no Possession because the Annualrent was granted to take effect only after the Granters Death and the Decreet thereupon was obtained long before his Death and so could be repute no Possession The Lords were of Opinion that the foresaid Decreet of Poynding of the Ground upon the base Infeftment Ordaining the Ground to be Poynded the Terms of payment being come and bygone was sufficient to validate the base Infeftment and that thereby it remained no more a private Clandestine Infeftment by many other Questions falling in The Matter was laid aside without Decision vide February 27. 1667. Inter eosdem John Kinard contra Laird of Fenzies Eodem die JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie against the Laird of Fenzies who had his Land on the other side thereof alleadging that he and his Predecessors and Authors have been fourty years in Possession of the Myre as proper Part and Pertinent of the Barony of Rossie and that the same is severally kend and known by March and Meith and a Dyke inclosing it from the Defenders Lands It was alleadged for the Defender that he his Predecessors and Authors this fourty years has been in Possession of the said Myre by doing all the Deeds Libelled by the Pursuer which must give them Right at least of common Passurage Fail and Divot therein and therefore craves the Defense to be found Relevant and admitted to his Probation at least that a Cognition might be by an Inquest conform to the Act of Parliament and Witnesses led hinc inde The Pursuer Replyed that he offers him to prove that by the space of fourty years he his Predecessors and Authors Possessed the said Myre not only by the Deeds Libelled but also did divide the same in several Parcels to each Tennent in the Barony and was accordingly Possessed by them which is sufficient to show that they bruiked the same as Property and not a promiscuous Commonty And as for the Defenders Alleadgances of Commonty by common Pasturage c. The same ought to be Repelled because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time which hindered him to Acquire a Right of Commonty by Possession and Prescription and he cannot alleadge that he hath any other Right by express Infeftment and therefore being so much more pregnant then the Defender there ought to be no Cognition but he preferred in Probation The Lords Repelled the Defense in respect of the Libel and Reply but granted Commission to one of their number to Examine Witnesses for the Pursuer omni exceptione majores after which the Defender passing from his Compearance The Lords Declared they would give the Extract of the Interlocutor to the Pursuer and give his Libel and Reply by way of Condescendence and Declaration of the manner of the Property and of his Possession to his Probation Viscount of Stormount contra Heirs of Line and Creditors of the Earl of Annandale Eodem die THE Viscount of Stormont pursues a Declarator against the Heirs of Line of Umquhil James Earl of Annandale and several Creditors of the said Umquhil Earl who had Appryzed the Lordship of Skoon and were Infeft thereupon to hear and see it found and declared that David Viscount of Stormount had Disponed these Lands to Mungo Viscount of Stormount his Brother and the Heirs-male of his Body which failzing to Andrew Lord Balvaird and the Heirs-male of his Body c. with this express provision in the Charter and repeated verbatum in the Seasine that it should not be leisom to the said Mungo or any of the Heirs of Tailzie for the time to alienate the Lands or alter the Tailzie or to do any Deed whereby the same may be evicted or Apprized from the Heirs of Tailzie otherwise their Right should expire and should belong to the next Heir of the Contraveener and that thereby Iames Earl of Annandale last Infeft had contraveened the said Clauses by contracting thir Debts whereupon the Lands were Apprised and thereby had lost his Right and that the saids Creditors Bonds and their Apprizings are thereby null and void and likewise that the said Iames Earl of Annandale his Retour was null and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont as if the said Iames Earl of Annandale had never been Infeft The Defender alleadged First No Proses in this Order without a Reduction without which no Infeftment can be taken away The Lords Repelled this Alleadgence and found that a Declarator was al 's effectual as a Reduction when all was produced that was necessar to be produced before the ground of Nullity were Discussed with which all the rest will fall in consequence and that Reduction was only necessar to force tho Defenders to produce by the Certification but if the Defender would produce himself he might proceed by way of Declarator of Nullity Secondly The Defender alleadged no Processes because by the Co-ception of the Clauses irritant the Rights is declared to belong to the nearest Heir of the Contraveener and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird hath no Interest till he be served Heir-male to Iames Earl of Annandale the Contraveener in which case he cannot quarrel his Deeds or Debts The Pursuer answered that by Heir here cannot be understood the Heir actually served but the Person only that might be Heir for the Pursuer insisted in this same Processes against the Earl of Annandale when he was living and could not have been then excluded because he was not his heir
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
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
these Rights proceeding against him as appearand Heir to these predecessors and now assigned to him because there were other appearand Heirs specially condescended on nearer of Blood The Pursuer answered non Relevat to take away his Infeftment which behoved to be Reduced Secondly Non competit to the Defenders unless these nearer appearand Heirs were compearing for their Interest The Defender Replyed that the Infeftments having obtained no Possession and having proceeded only upon a Charge to Enter Heir against the Pursuer by Collusion It was competent by Exception seing there was no Service nor Possession nor any thing done that the nearer Heirs were oblidged to know and it was also competent to the Defenders not to deliver the Writs to any having no Right thereto they being lyable to deliver them to the nearest Heir of the true owner The Lords Repelled this Defense against the Exhibition reserving it to the Delivery in which they found it competent to the nearer appearing Heirs without Reduction Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy July 11. 1662. JOhn Rentoun of Lamertoun as Heir to his Father having charged the Deceast Earl of Levin for the Sum of due by him to umquhil Lamertoun The Earl suspended upon Compensation by six Bonds granted by umquhil Lamertoun to the umquhil Countess of Levin four of them to her self and after her Decease to her Daughters and two of them blank in the Creditors name which being done stante Matrimonio by this Lady did belong to her Husband jure mariti and not to her or his Daughters These Bonds were produced out of the hands of Alexander Kennedy sometime Master Porter of the Castle of Edinburgh who declared that he had the foresaid six Bonds in Trust from the umquhil Countess and the Laird of Lamertoun in Anno 1649. Levin being then Captain of the Castle of Edinburgh Lambertoun Constable and the said Alexander Porter and produced a Paper of Trust subscribed by Lambertoun and my Lady bearing that the Bonds were put in Alexander 's hands as a faithful Person whom both Trusted to be keeped till after the Ladyes Death and then delivered according to her direction against which Writes Lambertoun raised Improbation and Alexander Kennedy abode by the same and the Earl of Levin declared he made use of them upon the ground foresaid in his Improbation The six Bonds being written by Alexander Kennedy and Iames Rule who is dead and the Witnesses being George Watson Spittel and Young and in some of them Alexander himself all being dead but Alexander the Producer the direct manner of Improbation thereof ceassed and therefore they proceed to the indirect manner and give in many Articles of Improbation and the Earles Articles of Probation The Relevancy of which being Dispute to quadruplyes in Write and all Persons that either Parties desired being examined hinc inde and their Testimonies published to either Party and they having thereupon Dispute both as to the Relevancy and Probation in Write and being heard at last viva voce The Lords proceeded to Advise the Cause The weight of the whole matter lay in these Particulars mainly First For astriction of the Writs the said Paper of Trust holding in it two living Witnesses and one dead being true the Bonds related therein could not be false This Paper could not be Improven indirectly because the direct manner was competent by two living Witnesses whereof the one Deponed that the Subscription was like his Subscription as he Subscribed at that time being young and the third Witness being dead proves It was answered that the Witnesses insert proved not because comparatione literarum Crawford the Defunct's Subscription was altogether unlike his true Subscription produced Learmont sayes his Subscription was only like his and though Kill sayes it was his Subscription yet none of them Depones to have seen it Subscribed by any Body or by any Witness nor to know any thing of the time place or truth of the matter contained in the Writs being but an Evidence to keep the Witnesses in remembrance either of the Matter or of the Subscription of the Principal or themselves albeit they need not be proven here as in England by the Witnesses insert Yet in the case of Improbation if the Witnesses prove nothing of the Fact or Subscription as remembring that they or the Party Subscribed but only Deponing that it is their Subscription which can import no more of certain knowledge then that it is like their Subscription seeing none can swear that it may not be feigned so like that they cannot know it and albeit that would be sufficient where nothing is in the contrair Yet where there is strong presumption in the contrair as the Writ not being in the Parties hands but in the hand of a third Party malae famae and who hath at least betrayed his Trust never having made these Bonds known till six or seven years after the Countess of Levins Death and then offering to sell some of them to others and with all the Paper of Trust the Body thereof being written with one hand and the filling up of the Witnesses with another which no body hath or can condescend upon nor are Designed therein so the same being null by Act of Parliament cannot sufficiently astruct the truth of the other Bonds being in themselves suspect The Lords found the Paper of Trust not sufficiently to astruct nor the Testimonies not to prove it sufficient in respect of the grounds foresaid being instructed and the many presumptions against these Writs Therefore they improved the said pretended Paper of Trust. There was further produced for astructing the Bonds two Holographs alleadged Written and Subscribed by Lamertouns owns hand relative to the Bonds and Trust and for proving these were Holograph they produced a Holograph Accompt Book of Lambertouns and six Witnesses of whom three or four were without exception and the whole Deponed that they truly believed that the Holographs were Lamertouns hand and Lambertoun and the Lady Levins Subscriptions The question then was whether these Papers were so proven to be Holograph that they did sufficiently astrict the Bonds notwithstanding all the grounds instructed against them The Lords found Negative upon this consideration that when the Probation of Holograph is by Witness who saw the Holograph Writ Written and Subscribed albeit they be not instruct it is a full probation admitting no contrary probation but when it is only comparatione literarum or by Witnesses Deponing that they believe or that positively it is the hand writ of the Party that can import no more but that it is so like that it is undecernable for no man who saw it not written can positively swear with knowledge that it is impossible to fenzie the hand so like that it is undecernable and therefore holograph so proven admits a stronger contrary Probation and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph There was
accordingly It was alleadged he could not have allowance of the sums payed to the Brother and Sister because these could not exclude lawful Creditors It was answered for Mr. William he had payed bona fide a part and had given Bond for the rest and could not now be called in question It was answered he was in mala fide because the payment was made after intenting of the Reduction against his Right at the pursuers Authors Instance Mr. William answered non Relevat unless there had been a Reason Libelled in that Reduction against these Bonds The Pursuer answered it was sufficient that Reduction was used against the whole Right to which any Reason might be added The Lords found this alleadgence not Relevent to put Mr. William in mala fide unless there had been a special Reason of Reduction filled up and shown to Mr. William against these Bonds particularly Margaret Anderson and Iohn Elphingstoun contra Mary Wachop Iuly 22. 1662. MArgaret Anderson and Iohn Elphingstoun as heir to Anderson who were the two Daughters of umquhil Mr. David Anderson of Hills pursues Mary Wachop his Relict and Executrix to fulfil an Article of his Contract of Marriage bearing That if there were no Heirs-male of the Marriage he band and oblieged him and his Heirs-male and Successors whatsomever to pay to the Daughters of the Marriage 3000. merks and craved that the Executrix as representing their Father might pay the same The Defender alleadged Absolvitor because it is clear by the Clausses of the Contract that the Father did not bind himself simply or himself and his Heirs but that he bound only himself and his Heirs-male which is the more clear that the Narrative of that Clause bears because his Estate is provided to his Heirs-male The Pursuer answered he opponed the Clause by which he did not only obliege his Heirs-male but himself and his Heirs-male and so in oblieging himself he hath oblieged all that Represent him and he might have been pursued in his own lifetime if his Daughters had come to the age appointed by the provision 2ly He has not only oblieged himself and his Heirs-male but his Successors whatsomever and therefore his Executors The Lords found that by the Tenor of the Clause and Narrative thereof the Defuncts meaning was chiefly to obliege his Heir-male and albeit Successors whatsomever was added yet by the Narrative and the order of the Words they found the Heir-male was first burdened and behoved first to be discussed Therefore ordained the Defender to condescend what the Heir-male had to succeed to and if he was not Entered Heir-male and had nothing to succeed to as Heir-male they thought the Defender would be lyable William Montgomery contra Theoder Montgomery Eodem die WIlliam Montgomery as Donator to the Escheat of Theoder Montgomeryâ— pursues a general and special Declarator in on Libel and insists first in the general The Defender alleadges Absolvitor because the Horning is null the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile The Pursuer opponed the Horning standing bearing the Defender to dwell in Edinburgh and the Horning could not be taken away by Exception alibi not instantly veryfied The Lords Repelled the Defense but prejudice of Reduction thereupon Secondly Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming because these fell not under single Escheat It was Replyed the Defense ought to be Repelled because the jus mariti falls under single Escheat of the Husband and carrys with it per consequence the Liferent of the Wife The Lords was clear that the Replâ— was Relevant but the Defense not being competent in the general Declarator which was first insisted in they give no Interlocutor on the Reply Lord Frazer contra Phillorth Iuly 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg at the Instance of the Lord Frazer against the Laird of Phillorth It was alleadged for the Defender Absolvitor because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors Ita est Frazer of Doors had no real Right in his Person never having been Seased at least there is Certification granted against Doors Seasin in the Improbation at the Iâ—stance of the Defender against the Pursuer and his Father so that Doors having no reall Right his Disposition Instrument of Resignation and Câ—arter granted by the King flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit who had Right to Pttsligo's Appryzing of the hail Estate of Phillorth can give no Right to declare the Property especially against the Defenders who hath a real Right by Infeftment flowing from Phillorth his Goodsyre by Resignation and flowing from the Lord Lovit which albeit posterior yet having the first Infeftment is the first and only Right The Pursuer answered the Defense ought to be Repelled because any Right the Defender hath is from his own Grand-Father to whom he was alioqui successurus and thereby the Defender is Successor titulo lucrativo to his Grand-father the common Author after the Disposition granted to Doors and as umquhil Phillorth Doors Author personali objectione would be excluded from opposing Doors Right of Property which Right he had Disponed to Doorsâ— and was oblieged to warrand no more can the Defender who by this same Right he Defends being successor Lucrative to his Grand-Father be heard to exclude the Pursuer who is Successor to Doors 2ly Albeit there be no Seasine yet umquhil Phillorth and Lovit were fully denuded in favours of Doors by the Resignation made in the Kings hands and Charter conform after which any Right granted by them to this Defender is a non haâ—ente potestatem 3ly Any Right the Defender hath flowing from the Lord Lovit cannot defend him because it was but an Appryzing against Phillorth the common Author and it is offered to be proven that the Appryzing was satisfied within the Legal in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly to Frazer of Doors for 20000. merks and the Lands of Innerallothy were Disponed by them to Lovits own Sons irredeemable the price of which Lands being 54000. merks was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties and so as to the Lands of Cairnbulg and remnant Lands appryzed the appryzing is extinct The Defender answered to the first that he is not Successor titulo lucrativo to his Goodsyre because the time of the Disposition by his Goodsyre to him and also the time of his Goodsyres death his Father was alive and served Heir to his Goodsyre 2ly There was no Right in his Goodsyre when he Disponed but all the Right was in the Lord Lovit by Pitsâ—igoes Appryzing neither was Lovit denuded by the Resignation or Charter without Seasine so but that the second Resignation with the first Infeftment is preferable 3ly Satisfaction of the Appryzing as it is alleadged is not Relevant unless
it be by Intromission with the Mails and Duties of the Lands Appryzed conform to the Act of Parliament 1621. but no other payment or satisfaction by the Debitor is sufficient to take away an Infeftment contra singularem successurum The Lords Repelled the Defense founded upon Lovits Appryzing in respect of the Reply of satisfaction thereof and found no necessity to alleadge that the Person having Right to the Appryzing was otherways denuded the by acknowledgement of payment or satisfaction and that there needed no formâ—â— grant â—f Redemption or Renunciation Registrat conform to the Act of Parliamâ—n anent the Registration of Seasings Reversions c. wâ—ich the Lords found only to extend to Wodsets properly so called and not to Appryâ—zings neither yet to an Infeftment for Relief whereunto the Rents were not to be only for the Annualrent of the sum but to satisfie the Principal and therefore seing the Lords found that the only Right was in the Defenders Grand-father and that he Disponed to the Defender that he could be in no better case then his Grand-father as to the Disposition granted by his Grand-father without a Cause Onerous being after the Disposition of the same Lands by that same Grand-father to the Pursuers Author but found it not necessar to determine the Case of lucrative Successor as it was here stated to make the Successor lyable to all his Predecessors Debts Iames Birsbine contra Iohn Monteith Iuly 24. 1662. JAmes Birsbine pursues Iohn Monteith as Cautioner for Iohn Birsbine who was Executor to the Pursuers Father for payment of the Pursuers Legacy The Defender alleadged no Processe because the Executor himself is not Discussed and the Cautioner is only lyable subsidiary The Pursuer Replyed there is a Decreet obtained against the Executor produced and there was no further Discussing requisite because he is broken and the Pursuer is content to assign the Debt to the Cautioner The Defender answered non Relevat for a Decreet is no sufficient Discussing but there must be Registrat Horning at least albeit the Executor had neither Lands nor Moveables to Poind or Apprise The Lords sustained the Defense and found the Reply not Relevant till the Registrate Horning were produced Alexander Shed contra Robert Gordon and David Kill Eodem die ALexander Shed pursues Robert Gordon Pupil as lawfully Charged to enter Heir to his Father to pay a Debt of his Fathers compears David Kill the Pupils Uncle who was Tutor nominat to him but refused to accept and therefore shunned to propone any Defense in the Pupils own nameâ— least it should be an acceptance or gestio and therefore produced a Bond of the Defuncts and as Creditor alleadged that he would not suffer his Debitors Estate to be affected in his prejudice and offered him to prove that the Debt pursued on was satisfied The Question was whether he had Interest as Creditor to propone this Defense The Lords having considered the Case amongst themselves found that where Creditors in this manner compeared it is not cnmpetent to allow their Defense because it may delay the other Creditors pursuing so that a third Creditor may be preferred in Diligence and therefore they Repelled the Defense hoc loco but declared that it should be receivable against the Pursuer whenever he should pursue for affecting any of the Defuncts Means or Estate in the same case as now Mr. Patrick Weyms contra Mr. Iames Cunninghame Eodem die MR. Patrick Weyms having an Order of Parliament for a Terms vacant Stipend of the Paroch of Leswade Mr. Iames Cunninghame alleadged that Terms Stipend was not vacand but belonged to him as incumbent viz. Whitsonday 1659. because he was admitted before Michalmess 1659 and shortly after Whitsonday and so the legal Terms of Stipends not being divisable at two Terms but at Michalmess joyntly he being incumbent before Michalmess hath the whole year The Lords Repelled this alleadgence but preferred Weyms and found that Ministers had Right to their Stipend Termly and if he entered before Whitsonday he had Right to the whole year and if after VVhitsonday and before Michalmess but to the half Barbara Naesmith contra Iohn Iaffray Iuly 25. 1662. BArbara Naesmith pursues Iohn Iaffray her Son as Heir and Executor to his Father for payment to her of her umquhil Husbands hail Means and Eschaeat by vertue of a Missive Letter written by the Defunct her Sponse bearing that if he happen to die before his return that his VVife should do with what he had as she pleased that he thought it too little for her but he desired her to Discharge a 1000. Pounds or a 1000. Merks to his Brother Alexander and 500. Merks to his Sister Magdalen if she follow her advice The Lords having formerly found that this Letter was donatio mortis causa or a Legacy and so could only affect Deads part It was now further alleadged that by the pursuers Contract of Marriage he was oblieged to imploy 6000. merks on Land or Annualrent to him and her and the longest liver of them two and to the Bairns to be gotten betwixt them which failzing his Heirs This Obliegement to imploy being a Debt the Moveables must be lyable for it primo loco and the Pursuer can only have Deads part of the remainder of free Goods The Pursuer answered that this Destination being on Heretable Clauses cannot affect the Moveables 2ly The Bairns cannot have Right thereto till they be Heirs and so they will be both Debitors and Creditors and the Obligation will be taken away by Confusion The Lords found this Defense Relevant notwithstanding of the Answer and that albeit the Clause was Heretable quoad creditorem yet it was Moveable quoad debitorem and so behoved to be performed out of the Defuncts Moveables and that the entring thereto would not take away the Obliegement by Confusionâ— more then one paying a moveable Debt wherein he is both Debitor and Creditor yet he will have action of Relief against the Executors out of the Moveables It was further alleadged that in the said Missive there are two particular Legacies left to the Defuncts Brother and Sisters which must abate the general Legacy The Pursuer answered that both Legacies were only left thus I wish c. which cannot be obligator nor constitute an effectual Legacy but is only a desire or recommendation left in the Pursuers option and for Magdalens Legacy it was conditional the following the Pursuers advice which she did not but left her contrair her will The Defenders answered that verba optativa were sufficient in Legacies at least were sufficient to make a fidi commissari Legacy because all fidi commissis either for restoring the Inheritance or for restoring Legacies in the Civil Law were in such Terms and albeit such words would not be sufficient intor vivos yet favore ultimo voluntatis where the Defuncts will howsoever manifested is the Rule and so is most extended such words are sufficient as to the condition in Magdalens Legacy
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without 〈◊〉 had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâ—ige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâ—itantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra 〈…〉 Ianuary 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing the
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
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
Second Answer upon the Act of Council it cannot prove against the Suspenders being only under the Town-clerks hand not being a Process upon Citation nor having a Warrnat subscribed by the Suspenders The Lords having considered the Bond in Question albeit they found the tenor thereof not to be contrair the Act of Parliament yet found the same was unwarranttably taken if the same was extortâ—d as aforesaid and found the Decreet of the Lords not to militat against the Suspenders or to warrand that incarceration brevi manu and found the Act of Council proved not agaiâ—st the Suspenders and yet Ordained them to renew a Bond by the Lords Authority of the like tenor Elizabeth Fleming and Sir Iohn Gibson contra Fleming and Robert Baird BY Contract of Marriage betwâ—xt the said Robert Baird and his Spouse he accepted 12000 merk in name of Tocher in satisfaction of all his Wife could succeed to by her Father Mother Sister and Brothers and discharged his Mother as Executrix and Tutrix thereof Yet she having formerly put more Bonds in the name of Roberts Wife then this Sum and there being no Assignation to the remainder in the Contract pursues the said Robert and his Spouse to grant an Assignation thereof and to pay what he had uplifted of the Sums more nor his Tocher The Defender alleadged the Summons are not relevant he neither oblidged ex lege nor ex pacto to Assign The Pursuer answered this being bona fidei contractus the meaning and interest of the Parties is most to be respected and therefore though it contains but expresly a discharge which cannot be effectual to lift the Sums from the Creditors but would loss them to both Parties he must Assign especially seing his acceptance of full satisfaction imports an oblidgment to denude himself of the superplus And which the Lords found relevant and sustained the Summons Walter Riddell contra Eodem die WAlter Riddell as Executor dative confirmed to one Liddell in the Caâ—nongate pursues his Debitors to pay compears a Donator as ultimus Haeres and craves preference The Pursuer answered First His Gift was not declared 2dly He offered to prove the Defunct had an Agnat viz. an Uncle or an Uncles Son Which the Lords found relevant to be proven by Witnesses Robertson contra Buchannan February 14 1663. RObertson pursues Buchannan to repay to him a sum of Money who alleadged that his Bond bearing to pay this Charger or to Arthur Buchannan his Brother it is alternative electiâ— est debitoris and he has compensation against Arthur which is equivalent as if he had payed him The Lords repelled this alleadgance and found that the Charger being deliverer of the Money and now haver of the Bond it could import no more but that the other Brother was adjected for the Chargers behove and that there is no option to the Debitor in such cases Mr. Iames Forsyth contra Archibald Patoun February 17. 1663. MR. Iames Forsyth as Executor Confirmed to his Sister pursues the said Archibald Patoun her Husband for payment of her third of his Free Goods at the time of her death The Defender alleadged First By the Deceased Wifes Contract of Marriage with the Defender she accepted a 1000 lib. for all she could crave by his decease in case there were no Bairns of the Marriage and albeit there was a Bairn surviving her yet the Bairn shortly thereafter dyed The Lords repelled this Defence and found that the Bairn surviving the Mother never so short was enough It was further alleadged absolvitor because the Deceased Wife having a Child surviving her her share belonged to that Child as nearest of Kin and the Child being dead belongs to the Defender the Childs Father as nearest of Kine to the Child and cannot go back to the Mothers nearest of Kin because there is no succession of Cognats in Scotland The Pursuer answered that if the Child had been Executor Confirmed to the Mother ad eundo haereditate would transmit the same to the Father but there being no Confirmation haerediâ—as mobilium jacebat and the Goods remain yet still in bonis defuncti maritis and albeit it was found in the case of Bells contra Wilkies that it was not necessar to transmit moveables that the Testament were execute yet in that case it was a Confirmation which was esteemed an addition The Defender answered that he had done diligence to have it Confirmed but during the Childs life all Judicatories were stopped and he had taken Instruments of his desire to be Confirmed and alleadged that as Bairns surviving would transmit their Legittime though they had done no diligence so this Bairn surviving alone was sufficient The Lords found that seing there was no Confirmation the Right was not established in the Childs Person and that the Right could not fall to the Father but fell to the nearest of Kin of the Mother and found it was not like a Legittime which is only of the Fathers means and not of the Mothers and hath a special priviledge in Law to be transmitted by more superviving Margaret Hay contra Sir Geoâ—ge Morison Eodem die SIR Geoege Morison having granted a Bond to Umquhile Iohn Bell and Margaret Hay the longest liver of them two in Conjunct-fee and after their Decease to the Bairns of the Marriage the said Margaret with concurse of the Bairns charges for Payment Sir George Suspends on this Reason that Margaret is but Liferenter and the Bairns of the Marriage are but Feears and therefore seing there was an Infeftment upon the said Bond he ought not to pay the Sum till the Bairns be Infeft as Heirs of Provision of the Marriage to their Father and renunce the Infeftment The Lords decerned but superseded the Extract untill the Bairns were Infeft as Heirs of Provision to their Father and did grant Renunciation and found that all the Bairns Male and Female joyntly and equally behoved to be Served as Heirs of Provision to their Father in this Annualrent and Infeft accordingly and that by Bairns was not to be understood the Heir of the Marriage only Colonel Iames Montgomery contra The Heirs of Robert Halliburtoun Eodem die IN a Declarator of Redemption of a part of the Lands of Collfield The Lords sustained the Order at the instance of the Collonel as being a Singular Successor albeit he produced not the Reversion at the using of the Ordor nor now seing the Defender compeared and he offered to prove by their Oath or their Curators that they had the Contract of Wodset in their hand both then and now Birsh contra Dowglas February 18. 1663. BIrsh an Inglish Woman pursues Catharine Dowglas to pay a Bond wherein she and her Umquhile Husband were oblidged The Defender alleadged absolvitor because it was a Bond stante matrimonio given by a Wife which is null in Law It was replyed it is Ratified Judicially and the Defender oblidged never to come in the contrare upon Oath Judicially which is the strongest
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
the Reason Elizabeth contra Eodem die THe said Elizabeth pursued the Executors of her Husband and insisted upon several points First she craved the Ann as belonging wholly to her seing there was no Children and the Ann being in favours of the Wife and Children the nearest of Kin could have no part thereof The Defenders answered that the Ann was introduced the time of Popery when the had no Wife nor Bairns and so did still most properly belong to the nearest of Kin who would get it if there were neither Wife nor Bairns The Lords found the Ann to divide betwixt the Pursuer and the nearest of Kin. The Pursuer insisted next and alleadged that a Bond bearing Clausses of Annualrent and Obliegement to Infeft behoved either to give a Right to the half of the Stock or else to a Terce of the Annualrents The Lords found the Clausses of Annualrent and Destination to exclude her from the Stock as Heretor and the want of Infeftment to exclude her from the Terce of Annualrent The Pursuer insisted in the next place and produced a Bond granted by her Father to her Husband and here the longest liver of them two and the heirs procreat betwixt them without any addition or termination failzing these heirs and without Clausses of Annualrents or Infeftment and therefore she claimed the whole Sum as being the longest liver It was answered that this Bond did Constitute in her only a Liferent according to the ordinar conception and interpretation of that Clause the longest liver of them two betwixt man and wife but especially heirs procreat betwixt them being mentioned which behoved to be the mans heirs who if they had existed would have had right as heirs to their Father not to their Mother and therefore the Father behoved to be Feear and the Mother only Liferenter It was further alleadged that beside the Liferent the Pursuer behoved to have right to the half of the Stock because the sum being moveable albeit the Tenor of the Bond made it payable to the Relict for her Liferent use yet she behoved to imploy it so as the Stock would remain which Stock would still be divisible betwixt the Relict and nearest of Kin as being moveable The Lords found that the Pursuer might take her choise of the Liferent or of the half of the sum but would not allow her both Iames Halyburtoun contra Lord Roxburgh Ianuary 25. 1663. JAmes Halyburtoun as Assigney Constitute by his Father pursues the Earl of Roxburgh for payment of a Debt due to his Father The Defender alleadged no Process because the Assignation was not intimate in the Cedents Life and so he was not denuded but the sum remained in bonis defuncti and behoved to be Confirmed especially seing this Assignation is a general Assignation omnium bonorum without condescending upon this or any other particular The Lords Repelled the Defense and found Process Ninian Steuart of Askoege contra Steuart nf Arnhome Eodem die NInian Steuart as heir to his Father Askoege pursues Reduction of a Transaction of a Tack which Tack was Assigned to him by his Wife and by him Transferred to Iohn Steuart heir of a former Marriage The Reason of Reduction was because the Translation was on Death-bed in prejudice of the heir The Defender alleadged Absolvitor because the Pursuer is Witnesse in the Translation which imports his consent The Pursuer answered that Subscribing as Witnesse could import no more but that the Witness saw the Party Subscribe but did not obliege to take inspection of the Contents of the Write 2ly The Pursuer when he Subscribed was minor The Defender answered that in this Case the Subscribing as Witness behoved to import consent because that very Subscription it self by the Father being sick did import a Deed done on Death-bed Especially it not being a Testament but a Writ inter vivos and for the minority the Pursuer was in confinio majoris aetatis and suffered the Defender to possess twenty years long after his anni utiles was past The Lords found the Subscription as Witnesse in this Case to import consent and being quarreled inter annos utiles they found sufficient to a minor though in Confirmation Gordon contra Frazer Iuly 3. 1663. GOrdon having Confirmed himself Executor Creditor to Forbes of Auchinvil pursues 〈…〉 Frazer his Relict for Delivery to him of the Moveables who alleadged absolvitor because the Moveables upon the Mayns of Achnivil were Disponed to her by her umquhil Husband it was answered that the Disposition was simulat inter conjunctas personas retenta possessione and therefore null It was duplyed that the Disposition was upon an onerous Cause without simulation because it bears to be in respect that by the Defuncts Contract of Marriage he is oblieged to Infeft his Wife in five Chalder of Victual out of Auchnivil for the Aliment and Intertainment of his younger Children till the age of fourteen years and because he was necessitate to sell that Land therefore he Disponed the moveables in leu thereof which is also instructed by the Contract of Marriage The Pursuer answered that this is but a provision to Children and could not be preferred to the Defuncts Creditors especially being a provision before the Children were existent and if such should be allowed it were easie upon such latent provisions in favours of Children to prejudge Creditors The Defender answered that if the Pursuers Debt had been anterior to the Contract of Marriage he might have had ground upon the Act of Parliament 1621. but this Debt was posterior to the Contract and there was no reason to hinder a Parent to provide his Children and Dispone Moveables to him in satisfaction thereof The Pursuer answered that both being yet but personal obliegements not having obtained effectual Possession the Creditor though posterior must be preferred to the Children especially if the Defunct have not sufficient Estate to pay both 2ly The Disposition is upon a false Narrative because the Lands of Auchnivil are yet undisponed The Lords found that the Childrens Disposition ought to be preferred unless the Father were insolvendo at his death in which case they preferred the Creditors though posterior and likewise found the alleadgence Relevant that the Narrative was false and so the Disposition without a Cause Isobel Mow contra Dutches of Bucleugh Iuly 7. 1663. THe said Isobel having Served Heir to William Mow her Grandsyre Charges the Dutches as Superiour to receive her she Suspends and compearence is made for certain persons to whom the Chargers Father had Disponed the Lands in question who raised Reduction of the Defenders Retour and Infeftment upon this Reason that the Retour was null Serving the Charger Heir to her Grandsyre as last Vest and Seased whereas they produced the Infeftments of their Uncle and Father as Heirs to their Grandsyre in these Lands and therefore instructed that her Grandsyre dyed not as last Invest and Seased as of Fee but her Father their
Author It was answered for the Charger that the Retour could not be taken away hoc ordine by Reduction but behoved to be by a Summons of Error for Reducing the Service by an Inquest of Error to be pursued in Latine by a Precept out of the Chancellary It was replyed that there needed no Service of Error but the Retour and Infeftment might be Reduced unless there had been the question of propinquity of Blood of a nearer Heir which might have made the Inquest an Assise of Error which could not be in this case seing the Inquest had done their Duty who 〈…〉 produced one of the Grandsyres Seasine found him to have dyed last Vest and Seased as of Fee and neither could know nor was oblieged to know that there was a posterior Infeftment to the Defenders Uncle or Father The Lords found the Reduction receivable hoc ordine Hamiltoun contra a Dumb man in Glasgow Iuly 9. 1663. THis Dumb Man having Right to an Annualrent of twenty pound yearly out of a Tenement in Glasgow thereupon 〈…〉 Hamiltoun his Creditor having arrested and obtained Decreet for payment of this Annualrent in Satisfaction of the Dumb-mans Debt It was alleadged for the Person whose Bond was lyable for the Annualrents Absolvitor for five years thereof because he had payed these years to the Dumb-mans Sister by his consent in so far as he Delivered the Money to the Sister in presence of the Dumb-man and obtained her Discharge thereupon in his name subscribed also by him with the initial Letters of his name It was answered non relevat because the Discharge bore not that the Dumb-man received the same but his Sister and bears that she is obliedged to warrant it at the Dumb-mans hand and his presence and seing of Money Delivered and his Subscription cannot import his consent because he being Dumb could not know what the extent of the Sum was nor whatfor years it was The Lords Repelled the Defense in respect of the Reply Mr. Thomas Kirkcaldy contra Mr. Robert Balcanquhil and Heretors of Tranent Eodem die THe Heretors of Tranent raised a double Poynding against Mr. Robert Balcanquhil on the one part and Mr. Thomas Kirkcaldy on the other part both claiming the Stipend of Tranent 1662. It was alleadged for Mr. Robert Balcanquhil he ought to be preferred because he was Minister at Tranent by Presentation and Collation long anterior to Mr. Thomas Kirkcaldy and albeit he was Deposed in Anno 1648. yet he was Reponed by the Bishop of Edinburgh and Synod of Lothian in October 1662. because of that Narrative that he was unlawfully Deposed in Anno 1648. and so being Reponed before Martinmass 1662. he thereby must have Right to the half due at Martinmass 1662. It was answered for Mr. Thomas Kirkcaldy that Balcanquhils Repossession being after Michaelmess 1662. which is the Legal Term of Stipends and he having Served till that time by a Title standing Reposition can operat nothing before its Date and so cannot reach to Michaelmass Term The Lords preferred Mr. Thomas Kirkcaldy to the hail year William Hay contra Iohn Nicolson Iune 16. 1664. JOhn Nicolson having granted an Assignation in Anno 1653. of a Bond granted to him by Iames Crightoun Sheriff of Nithisdail principal and umquhil William Livingstoun Cautioner the name of the Assigney was left blank till 1663. at which time William Hayes name was filled up and which Assignation contained a Clause of Warrandice against all deadly as Law will William Hay having used Execution on the Assignation against the Principal and Cautioner in the Bond returns upon the Warrandice and Charges Nicolson who Suspends on this Reason that the Clause of Warrandice as it is conceived in the Assignation could import no more then that the Debt Assigned was a real Debt resting and not to be Evicted by any other Right Especially seing it did not bear expresly to warrand it to be good valide and sufficient which might infer to warrand not only that the Assignation should clear the Right of the Debt but that the Debitor should be solvendo And secondly considering that there is no onerous equivalent Cause for granting the Assignation Nicolson the Creditor might have Discharged Livingstoun the Cautioner and given him an Assignation that he might thereupon Charge the Principal The Charger opponed the Clause of absolute warrandice which have ever been esteemed to reach to the Debtors being solvendo The Lords found the Claúse thus concieved could not extend to the sufficiency of the Debtor Thomson contra Reid Iune 15. 1664. JAmes Thomson in Cryle having Appryzed certain Tenements in Edinburgh from Iames Sinclar pursues Iames Reid as one of the Possessors for Mails and Duties who alleadged that he had bruiked by Tack from Iames Sinclar before the Appryzing which Tack bare 80. pound of Tack Duty and to continue for seven years and bare expresly a provision that the said Iames Reid should retain the Annualrent of 600. merks adebted to him by Sinclar as a part of the Tack Duty and that he should not be removed untill the said 600. merks were payed The Pursuer answered that the alleadgence was no way Relevant to accompt the payment of the 80. pounds of Tack Duty to the Pursuer out of which the Defender could have no Retention of his Annualrent because that is but a personal provision adjected in the Tack and no part of the Tack and can work no more then if such a Provision had been made out of the Tack in which Case it would only have been a part of the Tack Duty in Compensation of the Annualrent as an Assignation would not be effectual against a singular Successor and would endure no longer then the Land was his who assigned the Duties So now the Land ceassing to be Sinclars the Assignment or Alocation thereof to be retained for satisfaction of the Annualrent is not Relevant against this Appryzer no more then that part of the Clause by which the Defender is provided not to remove till his Sum be payed which was never sustained to be effectual against a singular Successor The Defender answered that this Defense stood Relevant because the Clause of Retention is adjected immediatly to the Tack Duty and so is as a part thereof and so is real and Effectual against a singular Successor because if Sinclar had set the Tack for a grot it would have been valid and therefore might more set it for the satisfaction of the Annualrents and so much Duty further The Lords Sustained the Deâ—ense that seing there remained a Tack Duty over and above the Retention of the Annualrent and that the Tack had a particular Ish of seven years that it was valid but found the Case dubious if there had been no Tack Duty over and above the Annualrent but that the Land had been either set expresly for satisfaction of the Annualrent or for such a sum equivalent thereto to be retained In which case the Tacks would want a Tack Duty
Benefice by his Right of Presentation and Collation It was alleadged for the Collectors of the vacant Stipends that his Stipend was not as the allowance of an helper but was a several Congregation separate from the Parsonage of Peebles and at the Parsons Presentation and that no helper has a Presentation and that the Incumbent not being admitted till after Michaelmess has no Right to any part of the Fruits of that year though he was Presented before because the Kirk cannot be said to be full but vacant till the Minister be admitted The Lords found that this Kirk having a Presentation could not return in the vacancy to the Parson of Peebles and that the Presentation being at Lambas and the Incumbent serving at the Kirk and Entring to his Tryals immediatly till he was Entred which was in October thereafter and that he had Right to the half of that years Stipend not being presented before Whitsonday and found the other half to belong to the Collector of vacand Stipends Lairds of Tulliallan and Condie contra Crawfoord Eodem die THe Lairds of Tulliallan and Condie as having a Right from him pursues Declarator of the Expiration of an Appryzing led at the Instance of Crawfoord to which Margaret Crawfoord his Daughter has now Right and condescends that the sum Appryzed for was satisfied within the Legal by Compensation in so far as Tulliallan had Right to a Contract whereby Crawfoord the Appryzer was oblieged to deliver so many Chalders of Coal weekly or in Case of Failzie four pounds for ilk Chalder It was alleadged for the Defender that this Article of Compensation ought to be repelled First because the said Contract is prescribed 2ly The Appryzing proceeded upon a Decreet of Compt and Reckoning wherein an Alleadgence being founded upon the same Contract was past from pro loco tempore and so can never now be made use of to take away that Decreet much less the Appryzing against a singular Successor who seing the same past in tuto to take Right without the hazard thereof 3ly The Defender cannot be oblieged after fourty or fifty years time to prove the Delivery of an yearly Duty of Coal 4ly The Compensation is not de liquido in liquidum because the one is a personal Contract the other is an Apprysing and Infeftment the one hath not a liquid price Constitute but bears expresly such a Sum in case of failzie and not as the price which being much more then the ordinar price then is but a personal failzie which cannot be liquidat till Declarator and modification of a Judge The Pursuer answered that he was evicting the rigor of an Appryzing in causa maxime favorabili And as to the first alleadgence anent the Prescription offers to prove Interruption by Arrestments c. To the second not Relevant according to the Custome before the years 1649. competent and omitted was not relevant against Decreets of Suspension But Suspenders might either omit or pass from their Reasons and Suspend upon them again which could not but be alswell effectual against the Assigney as the Cedent As to the third this Article being instructed by Writ no presumption nor less time then Prescription could take it away To the which the Coals having a liquid Sum in lieu thereof the Article is liquid and as payment within the legal will annul an Appryzing so will Compensation which is equiparat in Law though the Case would not be alike in a Wodset against a singular Successor The Lords found the Defenses against this Article relevant viz. that the Article was not liquid by a Sum Constitute expresly for a price and that it being alleadged that in the Decreet this alleadgeance was past from and an expresse reservation that it might be made use of against any other just Debt then that which was in the Decreet whereupon the Appryzing proceeded The Lords had also consideration that the Legal of the Appryzing was not yet expired Lyon of Muirask contra Laird of Elsick Eodem die LYon of Muirask pursues the Laird of Elsick upon a Debt of his Fathers as Successor titulo lacrativo The Defender alleadged absolvitor because any Disposition he had from his Father was in his Contract of Marriage whereby 10000â— merks of Tocher was received by his Father and 14000. merks of Debt more undertaken for his Father with the burden of his Fathers Liferent The Pursuer answered the alleadgeance ought to be repelled because he offered him to prove that the Land Disponed was then worth fourty or fifty Chalders of Victual so that the Cause onerous was not the half of the value and therefore as to the Superplus he was Lucrative Successor The Defender answered that any onerous Cause or price though incompetent was enough to purge this passive Title and albeit the Pursuer might reduce the Right and make the Lands lyable because the Cause was not onerous and equivalent yet he could not be personally lyable in solidum for all the Defuncts Debts The Lords having seriously considered the bussinesse after a former Interlocutor the last Session Assoilzing from the passive Title but finding the Lands redeemable by the Pursuer or any other Creditor for the sums payed out did now find further that the Defender was lyable for the superplus of the just price of the Land according to the ordinar Rate the time of the Disposition and that the superplus over and above what he payed or undertook ought to bear Annualrent as being the price of Land Iames Iustice contra Earl of Queensberry Eodem die IAmes Iustice as having right to a Bond of 6000. merks due by the Earl of Queensberry pursues the Earl and the Lord Drumâ—anrig his Son as taking his Estate with the burden of his Debt to pay it who alleadged no Processe because the Pursuers Right was an Assignation granted by a Tutrix not bearing in Name of the Pupil or as Tutrix in his Name because being in infancy he could not subscribe but bearing to be done by her as taking burden for the Pupil The Lords found the Assignation not formal not bearing the Pupil Disponer with his Tutrix but yet found the Letters orderly proceeded the Charger before Extract producing a Ratification by the Pupil and Tutrix formally done Laird of Prestoun contra Nathaniel Ebred Iune 24. 1664. THe Laird of Prestoun pursues Reduction and Improbation against Nathaniel Ebred of all his Rights of certain Lands The Defender alleadged Absolvitor because the Lands in question are Abbay-lands Erected in a temporal Holding in favour of Prestoun and therefore by the Act of Parliament 1633. all such Lands are annexed to the Crown and the Feu-duties are only found due to the Lords of Erection ay and while they be redeemed which is repeited in the 30. Act of Parliament 1661. and therefore the Pursuer not being Superiour but the King he has no interest to Improve of Reduce The Pursuer answered that he opponed his Infeftment of the Lands holden of the King
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right â—b non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
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
1621. It was answered for the Lady They opponed the Lords dayly Practique ever since the said Act that Infeftments were never taken away thereupon by Exception or Reply Which the Lords found Relevant Montgomerie contra Hoom. Eodem die WIlliam Mongomery pursues Alexander Hoom to Remove who alleadged absolvitor because he stands Infeft and by vertue thereof in seven years Possession and so hath the benefit of a Possessorie Judgement It was Replyed that before any such Possession a Decreet of Removing was obtained against the Defender which made him mala fide Possessor It was duplyed that since that Decreet which was in absence the Defender had Possessed it seven years without Interruption which acquired the benefit of a new Possessorie Judgement And alleadges that an Interruption of Possession ceases by seven years albeit in the Point of Right it ceases not till Fourty The Lords found the Interruption stands for fourty Years and that no Possession thereafter upon that same ground could give a new Possessorie Iudgment the Possession being Interrupted not only by Citation but by a Decreet of Removing which stated the other Partie in Civil Pessession Earl of Sutherland contra Mcintosh of Conadge Eodem die THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl viz. Blood-wyts Escheats c. whereof Conadge had obtained Gift from the Usurpers the time that Regalities were Supprest and declared that he insisted for those only that were yet unuplifted for which the Parties Fyned had not made payment albeit some of them had given Bond. The Defender alleadged absolvitor for Blood-wyts and Amerciaments which might have been done by the Justices of Peace because as to these the Inglish had done no wrong seing the Justice of Peace might then and may now Cognosce and Fyne for Blood-wyts whithin the Regality The Pursuer answered that as he might have Re-pleadged from the Justice General if he had not been impeded by the Act of the Usurpers so much more might he have re-pleadged from the Justice of Peace and therefore any Blood-wyts decerned by them belonged to him as Lord of the Regality The Lords repelâ—ed the Defense and joâ—nd the dead of the Iustice of Peace could not prejudge the Pursuer M. John Muirhead contra Iuly 21. 1664. MR. John Muirhead as Assigney pursuing he alleadged that the Assignation not being intimat before the Cedents death the Sum was in bonis defuncti and the Assigney could have no Right without Confirmation The Lords Repelled the alleadgance James Johnstoun Merchant in Edinburgh contra The Lady Kincaide November 11. 1664. JAmes Iohnstoun pursues the Lady Kincaide as Executrix to her Husband who alleadged absolvitor because the Testament was exhausted and she had obtained a Decreet of Exoneration which being standing un-reduced she behoved to be assoilzied seing there was no Reduction thereof raised 2ly Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby that the Testament was exhausted The Pursuer answered that the first Defense on the Exoneration non Relevat unless the Pursuer had been cited to the giving thereof it operats nothing against him nor needs he Reduce it 2ly The second member of the Defense of exhausting the Testament mentioned in the Exoneration non Relevat unlesse it were alleadged exhausted by lawful Sentences before intenting of the Pursuers Cause The Defender answered that it was Relevant to alleadge that payment was made of lawful Debts of the Defuncts instructed by writ before intenting of the Pursuers Cause for seing the Debt was clear the Executor ought not to multiply Expenses by defending against the same unless it were alleadged there were collusion to prefer the Creditors payed The Lords repelled both members of the Defense and found that the Executrix might not without a Sentence prefer any Creditor especially seing it was not a Debt given up in Testament by the Defunct neither was it alleadged that the Pursuer had long neglected to pursue Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh November 12. 1664. NIcolas Murray pursues a Reduction of a Decreet of the Baillies of Edinburgh obtained against her at the instance of Cornelius Neilson upon this Reason that she being pursued for the Mournings for her self and Family to her Husbands Funeralls which Mournings were delivered to her by the said Cornelius and were bought by her from him or by her Order sent to her which was referred to her Oath and she deponed that Cornelius had promised to his Father to give necessars for his Funerals out of his Chop and according to that promise had sent unto her The Baillies found that this qualitie adjected in the Oath that the Furniture was upon Cornelius promise to his Father resulted in ane Exception which they found probable by Write or Oath of Cornelius who having deponed denyed any such promise and therefore they decerned the Lady to pay Against which her Reason of Reduction is that she ought to have been Assoilzied by the Baillies because her Oath did not prove the lybel viz. That she bought the Wair from Cornelius or made her self Debitor therefore but only that she received the same from him without any Contract or Ingadgment which would never make her Debitor for a Wife or a Bairn in Family are not lyable for their Cloaths unless they promise payment but only the Father and in the same manner the Mourning for the Funeralls of the Husband is not the Wifs Debt but the Husbands Executors The Defender answered that the Reason was no ways Relevant seing the Pursuers Oath proved the receipt of the Goods which was sufficient ad victoriam causa The quality being justly taken away for albeit the Husband or his Executors were lyable for the Relicts Mournings yet a Merchant that gives off the same to the Relict is not oblidged to dispute that but may take himself to the Relict who received the same without either Protestation or Aggreement not to be lyable The Pursuer answered that whatever Favour might be pleaded for a Merchant Stranger yet this Furniture being given by the Defuncts own Son to his Relict could not oblidge her The Son being the Fathers ordinar Merchant The Lords found that the Oath before the Baillies proved not the lybel and that the accepting of the Mournings did not oblidge the Relict but the Executors seing the Defunct was a Person of their quality that his Relict required mourning and therefore Reduced Galbreath contra Colquhoun Eodem die WAlter Galbreath pursues an Exhibition of all Writs made by or to his Predecessors ad deliberandum The Lords restricted the lybel to Writs made to the Defunct or his Predecessors or by them to any Preson in their own Family or containing any Clause in their â—avour whereupon the Defender having Deponed that he had in his hand a Disposition of Lands made by the Pursuers Predecessors Irredeemably and that he had his Predecessors progress of these Lands but that
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
that the Liferent of the whole was given in satisfaction of the third and all The Pursuer answered that this could not be presumed unless it had been so exprest no more then a Terce is excluded by a provision of Liferent unless it bear in satisfaction of a Terce The Lords found the Defense Relevant that the Pursuer could not both have her third and the Liferent of the rest but gave her her option either of the third provisione legis or of her Liferent of the whole provisione hominis Earl of Athol contra Iohn Scot. Eodem die THe Earl of Athol having obtained Decreet against Iohn Scot before the Commissar of Dunkeld for the Teinds of the said Iohn his Lands He Suspnds and raises Reduction on this Reason that albeit the Decreet bear a Defense proponed that the Teinds in question are Mortified by the King to a Kirk and that the same was found Relevant and that the said Iohn succumbed in proving thereof yet he offers him to prove that before the Term elapsed he produced the Mortification before the Commissar and thereupon took Instruments which is produced Which the Lords found Relevant Mr. George Norvel Advocat contra Margaret Sunter Eodem die MR. George Norvel pursuing for Mails and Duties upon an Appryzing Compearance is made for Margaret Sunter who alleadged absolvitor because she was Infeft in Liferent before Mr. Georges Right which being found relevant for instructing thereof she produced her Seasine Which the Lords found not to instruct without an Adminicle and therefore sustained the Decreet The said Margaret raised Reduction of this Decreet on this Reason that now she produced an Adminicle viz. her Contract of Marriage 2ly That the Decreet is null because the quantities are not proven The Charger answered to the first that the Lords having found the Exception not proven the Pursuer could not be admitted in the second instance against a Decreet in foro upon production of that which she should have produced at first As to the second he needed not prove the quantities seing her exception was total without denying the quantities The Lords found the Decreet valide but ordained some of their number to deal with Mr. George to show favour to the poor woman Doctor Ramsay contra Mr. William Hogg and Alexander Seton December 22. 1664. THese three Parties having appryzed the same Lands the first Appryzer being Infeft the second not being and the third being Infeft The first Appryzer declared he would not insist for the Mails and Duties of the whole but only possessed a part The question came whether the second Apprizer not having Charged should be preferred to the third who was Infeft It was alleadged for the second Appryzer that he needed not be Infeft because the first Appryzer being Infeft in all he had the only jus proprietatis and there was nothing remaining but jus reversionis which the Appryzing alone carryed and as the second Appryzer might redeem the first as having the right of his Reversion so he might force him either to possess the whole whereby his Appryzing might be satisfied or give warrant to the second to Possess the remainder so likewise he might use Redemption It was alleadged for the third Appryzer that if the question were of the Redemption of the Land the second had good Right but the question being for the Mails and Duties a right of Reversion could never carry these without a Seasine The Lords considering the Point in Law and the great disadvantage the Leiges should sustain if all Appryzers were necessitat to take Infeftment They prefered the second Appryzer Cornelius Inglis contra Mr. Rodger Hog Eodem die MR. Cornelius Inglis being Infest upon an Appryzing pursues a Removing compearance is made for Mr. Rodger Hog who alleadged that he is also Infeft and had charged the Superiour though after the first Appryzer and had possessed seven years by lifting the Mails and Duties and therefore craved the benefit of a Possessorie Judgement The Lords having considered the Case amongst themselves whether an Appryzing and Charge without Infeftment could give the benefit of a Possessorie Iudgement They were equally divided in their Votes and the President resolved before he gave his Vote to settle the Parties contra Edmistoun of Carden Ianuary 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers as Lucrative Successor to his Father by accepting of a Disposition of his Fathers Lands after contracting of the Pursuers Debt alleadged absolvitor because being pursued beforeby another Creditor of his Fathers he did then alleadge that his Disposition was not Lucrative but for a Cause onerous equivalent to the worth of the Land which he proved by instructing the Rental and Rate of the Land at the time of the Disposition by Witnesses and the Sums undertaken for it by Writ whereupon he was Assoilzyed and can never be again conveened upon that ground nam obest exceptio rei judicatae for if he had been condemned as Lucrative Successorâ— upon the other Creditors Probation It would now have proven against him and therefore his beng Assoilzied must be profitable to him against others unless Collusion were alleadged and Instructed The Pursuer answered that this absolvitor was res inter alios acta and albeit a Condemature would have been effectual against the Defender non sequitur that an absolvitor should also be effectuall for him because he was called to that Condemnature but this Creditor was not at all called to the absolvitor 2. Even in a Condemnature if the Defender had omitted any thing that he might have alleadged in the one case competent and omitted would not hinder him to propone the same against another Creditor Therefore the Defender can only repeit the grounds of that absolvitor which if he do the Pursuer will alleadge That whereas in the absolvitor the Defender was admitted to prove the Rental The Pursuer omitted to crave the benefit of Probation which he would have gotten and this Pursuer offers him to prove that whereas the Rental was proven to but 18. Chalders of Victual the true Rental was worth 30. Chalder 3dly A part of the onerous Cause was the Portion of the Defuncts Children which would not Prejudge the Pursuer being an anterior Creditorâ— The Lords found that the absolvitor could not prejudge this Pursuer as to these points omitted and that it could not have effect inter alios except it had been in re antiqua where the Witness had died that in that case the Testimonies out of the former Process might be repeited but as to the Rental the Lords would not give the Pursuer the sole Probationâ— being so lubrick a point as not only what it payed but what the Lands were worth and it might have payed and ordained Witnesses to be examined hinc inde and found that the Bairns Portions not being payed bona fide before the intenting of this Cause could not prejudge the Creditor but ordained the Defender to Suspend on double
Poynding against the Pursuer and the Bairns but in regard of so much ground in the matter they declared they would not sustain the Passive Title to make him Successor universal but only as to the just Price and the Cause Onerous Grahame of Blackwood contra Brouns Ianuary 7. 1665. JOhn and William Brouns having Appryzed certain Lands and William Grahame having Appryzed the same within a year after pursues an Accompt and Reckoning against the first Appryzer upon the last Act of Parliament betwixt Debitor and Creditor and craves to come in pari passu with the first Appryzer not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer since the said Act of Parliament but also for these Duties that were Intrometted with before the said Act and that because the Act bears expresly That such Appryzing shall come in pari passu as if there had been one Appryzing led for both It was answered for the first Appryzer that what he did uplift bona fide before any Process intented against him at this Pursuers instance he cannot pay back a part thereof to the Pursuer because he is bona fide Possessor and because the Act of Parliament bears That such Appryzings shall come in pari passu which being in the future must be understood to be from their intenting of Process at least from the date of the Act but not from the beginning The Lords having considered the Tenor of the Act of Parliament found that such Appryzings should only come in pari passu from the date of the Act but that the bygones uplifted by the first Appryzer before the Act should be accompted to him in his Sum but no part thereof repeited to the second Appryzer and found that the Sums Appryzed for Principal and Annualrent of both Parties should be restricted as they were the time of the Act of Parliament in one total Sum and the Rent to be received from that time proportionally to the total Sums and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour and the charges of the Appryzing without compelling the second Appryzer to pay him the same Normand Lesly contra Gilbert Gray Ianuary 10. 1665. NOrmand Lesly charges Gilbert Gray Provost in Aberdeen to pay 2000 merk for which he was Cautioner for William Gray He Suspends and alleadges that the Charger had gotten an Assignation from the said William Gray to an Bond granted by the Earl of Errol to him and therefore craved that the Charger might be decerned to transfer that Assignation to him being given for the security of the same Sum. It was answered that the Charger was only oblidged to give a discharge to his Cautioner and not an Assignation of the Bond it self and much less of any security ex post facto he had gotten therefore The Lords declared they would not give the Charger Process till he Assigned the Bond and all security gotten therefore to the Cautioner William Reid contra John Reid Eodem die WIlliam Reid pursues Iohn Reid as his Tutor to deliver all Writs belonging to the Pupils Father or which were in his Custody and Possession quovis modo Intrometted with by the Tutor Who alleadged the Pupil could have no interest in any Writs but these which belonged to his Father The Lords found that Pupil had interest to call for Exhibition and Delivery of all Writs that were in his Fathers Possession quovis modo and ordained the Tutor to exhibit all but prejudice to any Partie having interest to crave the delivery of these Writs if they belonged to them Campbel contra Mary Bryson Eodem die GEorge Campbel having right by Adjudication to the Reversion of a Wodset of some of the Lands of Newlistoun Wodset by the Laird of Newlistoun to Andrew Bryson Baillie of Edinburgh whereupon he was publickly Infeft and thereafter did dispone the same to his Daughter Marry Bryson and she was Infeft holden of her Father which Disposition contained a power to the Father to dispone on the Sum in the Wodset Right during his Lifetime without her Consent after all Andrew Bryson obtained a Confirmation of the foresaid Wodset with Addition of 16. aikers of Land more for the same Sum which was conceived in favours of himself and the Heirs of the Marriage whereupon he was Infeft The said George having used an Order of Redemption craved Declarator Compearance is made for the said Mary who craved the said Sum to be delivered up to her It was alleadged by the Pursuer that she could not have up the Sum unless she were Infeft as Heir to her Father both in the first and last Wodset and resigned the same and so liberat the Land of the Burthen thereof for albeit she was Infeft proprio nomine yet it was but base holden of her Father so that the Superiority remained with her Father and she behoved to be Infeft as Heir to him and renunce the same 2. The Corroborative Wodset stood in her Fathers Person who by her Disposition had a Power to dispose of the first Wodset and so had altered the Fee thereof to himself and his Heirs It was answered that the second Wodset was taken when Maries mother was dead and she the only child of that Marriage and so was alike as if her name had been expressed 2. The Declarator it self will sufficiently secure the Redeemer albeit there were no Resignation 3dly The second Wodset is but accessory to the first so that the said Mary having power to renunce the first Wodset proprio nomine the second may be declared to be extinct in consequence and further offered Caution if need were to warrand the Redeemer The Lords found the Lands to be Redeemed but ordained the Money not to be given up untill the said Mary had Infeft her self as Heir to her Father and Resigned for they thought the Redeemer ought to put upon no hazard of repetition or of the danger of the Infeftment unrenunced seing it was the ordinar Course to be Infeft and to renunce Magaret Arnot contra Mr. Robert Arnot Ianuary 11. 1665. MArgaret Arnot pursues a Reduction of a Decreet of Exoneration obtained by William Arnot her Uncle and Executor to her Father It was alleadged for Mr. Robert Arnot Son and Successor to the said William that all Parties having Interest were not called viz The Creditors and Legatars who were concerned in the event of the Reduction for if there Sums and Discharges were not allowed according to the Exoneration The Defender behoved to return upon them for payment and therefore they ought to be called to defend their Interest The Lords repelled the Defense and found no necessity to call the Creditors and Legatars but that the Defender might intimat the Plea to them Neilson and Calender contra Ianuary 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons on which there was an Inhibition used It
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 thought
on Saturnday the whole Cruives might stand open So that no Fish might be taken thereby according to the old Statute of King Alexander from the Even Sun on Saturnday till the Sun rising on Munday The Lords found that the Saturndays slop ought to be of the whole Cruives and that from Saturnday at six a clock till Munday at Sunrising 5ly They Insisted for the Hight of the Cruives and alleadged that the same ought to be no higher then the water in its ordinar Course neither the time of the Flood nor of Drought otherwayes they might build the same as high as they pleased and that it ought not to be builded perpendicular which will hinder the Salmonds up-coming but slopping from the Ground to the top The Lords considering that there was no particular Law as to the hight of Cruives and that â—hir Parties had suffered the other to enjoy the Cruives above 40. Years that therefore the same should be uti possidebantur no higher then the old Cruives were 6ly They Insisted for the Liberty of the Midlestream beside and attour Saturndays Slop which is specially contained in the Acts of Parliament of King Alexander and King Iames the third and fourth and is renewed in the late Act of Parliament of King Charles the second The least quantity of which bears That five foot of the middle Stream must be constantly free It was answered 1. That the old Acts anent the midle Stream were wholly in desuetude and were in effect derogate by the Act of King Iames the sixt anent Cruives which ordains the Saturndays Slop to be keeped but mentions not the midle Stream And as for the late Act of Parliament it was Impetrat by these same Parties and never past in Articles or noticed by the Parliament but as an ordinar Confirmation It was answered that there was no prescription of publick Rights against standing Laws and albeit the desuetude of such Laws could be effectual yet the late Law Revives and Confirms them all per expressum which is not a particular Confirmation bearing mention of any particular Partie or particular Right but as a general Confirmation of general Laws anent all the Cruives in Scotland The Lords considering that the midle Stream has been long in desuetude and that this late Ratification was past without notice therefore before answer They Ordained the Parties to adduce Witnesses whether the midestream was accustomed in any Cruives in Scotland and whether the same would be beneficial or hurtful to the Salmond Fishing of the Kingdom in general and whether it were destructive to the Cruives in Common and likewise they gave Commission to examine the Witnesses hinc inde whether their new Cruives were builded upon challes or they otherways builded then the former Cruives to the prejudice of the Fishing above in the water George Hutcheson contra Dickson of Lonhead Eodem die GEorge Hutcheson pursues Dickson for a Sum of moneyâ— and for the Annualrent since the denunciation of the Horning Whereupon the Defender answered that the Horning was only at the Mercat Cross of Edinburgh where the Defender dwelled not and so was null and could not give Annualrent It was answered that albeit such Hornings be not sufficient for an Escheat yet they are sufficient for Caption and so are not null and therefore Annualrents having so much ground in equity and by the civil Law being due ex mora such denunciations should be sufficient for Annualrent The Lords found such Hornings null and would not allow Annualrent Logan contra Galbraith Eodem die LOgan charges Galbraith to remove from a House who Suspends and alleadges that she is Served and Kenned to a Terce of the House which Terce she brukes pro indiviso with the two thirds The Charger answered the Reason ought to be repelled because albeit the Defense pro indiviso be relevant against such who can obtain division It being their own fault that they do not first divide or they pursue Removing but where it is a House being unum tenementum indivisibile the Heir or Successor of the Husband who has two thirds and continues in his Possession as well as the Relict in her third ought to be preferred in the Possession quia majus trahit minus The Lords found the answers relevant to elide the Reason and decerned the Relict to remove with this quality that if the Feear did not dwell in the House himself the Relict should be preferred giving as much Mail as any other Tennant and giving Caution for the two part Lairds of Berfoord and Binstoun contra Lord Kingstoun Ianuary 21. 1665. BErfoord and Binstoun pursues the Lord Kingstoun for Spuilzie of certain Corns he alleadged absolvitor because he Legally drew the same as their Teynd by vertue of his Tack from the present Minister and Inhibition thereon It was answered First That was not sufficient summarly to draw the Defenders Teynds unless there had been a Sentence on the Inhition which is but as a warning and so must not infer Removing brevi manu ad vitandum tumultum 2ly If he had Legally pursued them for a Spuilzie they would have alleadged and now alleadge that they have Tacks standing from the Minister for the time who though deposed yet lives and all incumbents Tacks serve during their natural life and no Tack from the next incumbent Prejudges during the life of the former conform to an expresse Act of Parliament The Defender duplyed that albeit an Act of Parliament required removing not to be summarly in Lands it did not so in Teynds 2ly The Pursuers Tacks are null without consent of the Patron The Pursuer triplyed that they are standing cled with seven years possession and their Tacks are subscribed by the Patron Quadruplyed he was not then Patron but was standing Fore-faulted unrestored Quadruplyed it is sufficient coloratus Titulus cum possessione till the Reduction And the Lord Bothwells Son Patron was after restored whereby it revived The Lords repelled the Defense in respect of the Pursuers Tacks and found the Defender might not brevi manu intromet there being any pretence of Title but they desired the Pursuer to restrict to wrongous intromission and without Oath in litem Sir John Scot and Walter Scot contra Sir John Fletcher Eodem die WAlter Scot as being Assigney by Sir Iohn Scot of Scotstarvet to an Atlas Major of the late Edition pursues Sir Iohn Fletcher for delivering thereof as belonging to the Pursuer and now in his hand The Defender answered non Relevat unlesse it were condescended quâ— Titulo for if it came in the Defenders hands by emption or Gift it is his own and in mobilibus possessio presumit Titulum seing in these Writ nor Witnesses uses not to be interposed and none can seek recovery of such unless he condescend quo modo desijt possedere else all commerce would be destroyed and who ever could prove that once any thing was his might recover it per mille manus unless they instruct their
title to it 2. Though it should be condescended that they were lent yet it must be proven only scripto vel juramento being a matter above an hundred pound The Pursuer answered that in liquid Sums or Promises Witnesses are not receivable above that Sum but in corporibus or facts as in bargains of Victual made and delivered Witnesses are sufficient though for greater Value The Lords found the Pursuer behoved to condescended upon the way the books was delivered and found it probable by Witnesses Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh Eodem die MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights Mr. Williams Right was upon a Decreet cognitionis causa against the Appearand Heir renuncing against which Iohn Boyd alleadged that the Adjudication was null proceeding upon a null Decreet cognitionis causa First In so far as it was lybelled at the instance of Kintor as Assigney by his Brother who was Heir to his Father and Execut-Executor and neither Retour nor Testament produced and so was null for want of probation The Pursuer answered that he had now produced in supplement of the Decreet the Writs The Lords sustained the Decreet only as ab hoc tempore 2ly Boyd alleadged that the Decreet cognitionis causa proceeded on six hundered merks which was Heretable by Infeftment and contained Clause of Requisition and no Requisition produced The Lords found the Decreet null pro tanto and to stand for the rest being upon diverse Articles 3ly Boyd alleadged that the said Decreet ought to be Reduced in so far as it proceeded against the Cautioner of a Tutor for payment of the Annualrent of his Pupils money during the Tutorie and for the Annualrent of that Annualrent a tutâ—la finita because the Tutor had uplifted at least ought to have uplifted and imployed the same for the Pupills behove ex officio It was answered that albeit Tutors are oblidged for their Pupils Rent which are in Tennents hands yet not for the Annualrent of their Money being in secure hands then and now if the Tutor had lifted it it would have been lost he being broken and the Cautioner also and the Debitors being great men as the Marquess of Hamiltoun and Lord Burghlie they would easily have Suspended and lost the Pursuers pains The Lords found that Tutors were oblidged to uplift their Pupils Annualrents though the Creditors were secure and to imploy them for Annualrents but not for each year they were due but ante finitam tutelam because though he had them he was not oblidged every year to imploy them severally and so sustained the Decreet 4ly Boyd alleadged that the years of the Tutorie ought to have been proven which was not and so the Decreet is null The Lords sustained the Decreet seing it was lybelled in communi forma unless it were alleadged that some of these years were post sinitam tutelam here a Testificat of the Pupils age was produced Lord Borthwick contra Mr. Mark Ker. Ianuary last 1665. THe Lord Borthwick pursues a Reduction ex capite inhibitionis of all Rights made by Sir Mark Ker to Andrew or Mr. Marks Ker of Moristoun of certain Lands The Defenders alleadged no Process because none to represent Sir Mark Ker were called who being bound in warrandice to the Defenders ought to be called whereas of old Processes sisted till warrands were first discussed so now the warrand ought at least to be called The Pursuer answered that he was not craving Reduction of Sir Marks own Right but of Moristouns Right granted by Sir Mark who was common Author to both And as to the warrandice the Defender might intimat the plea if he pleased The Lords found no Process till the warrand were called Alison Kelloâ— contra Pringle Eodem die ALison Kello pursues a Reduction against the Lairds of Wadderburnâ— and Pringle and craves Certification It was alleadged for Pringle no Certification because he was minor non tenetur placitare de Haereditate Paterna The Pursuer answered primo non relevat against the Production but the Minor must produce and may alleadge that in the Debate against the Reason 2ly Non constat that it is Hareditas Paterna and therefore he must produce at least his Fathers Infeftment 3ly All he alleadges is that his Father had an Heretable Disposition without Infeftment which cannot make Haereditatem Paternam else an Heretable Bond were not Reduceable against a Minor or an Appryzing and Tack 4ly Albeit the alleadgeance were proponed in the discussing of the Reason yet the Reason being super dolo metu upon which the Defenders Original Right was granted and not upon the poynt of Preference of Right the brocard holds not in that Case as it would not hold in Improbation in casu falsi The Lords found that the Defender ought to produce his Fathers Infeftment and that a naked Disposition would not be sufficient which being produced they would sustain the Defense quoad reliqua against the Production but that they would examine Witnesses upon any point of fact in the Reason to remain in retentis that the Witnesses might not die in the mean time without discussing the Reason but prejudice of their Defenses Anderson and Proven contra Town of Edinburgh Eodem die ANderson being Creditor to Proven arrests in the hands of Gairdner all Sums due by him to Proven and thereupon pursues before the Commissaries of Edinburgh Gairdner gives his Oath that he is Debitor to Proven no way but for the Tack Dutie of the Customs of Edinburgh whereunto he was Sub-tacks-man to Proven conform to his Bond produced whereupon the Commissaries decerned Gairdner Suspends on double poynding It was alleadged for the Town of Edinburgh that the Sum in question being a Sub-tack dutie they had the common priviledge of all Masters against their Tennents and Sub-tennents that they might pursue either of them as they pleased without an Arrestment or any Diligence and were alwayes preferable for their Tack-dutie to any other Creditor of the principal Tacksman It was answered that Custom was not in the case of Rents of Lands wherein their is tacita hipotheca and that the principal Tacks-man was only their direct Debitor and the Sub-tacksman paying to the Principal Tacksman or which is equivalent to his Creditor is for ever free and the Town of Edinburgh hath secured themselves by taking Caution of the Sub-tacksman The Lords found the Town of Edinburgh preferable for their Tack-dutie and that they had immediat Action against the Sub-tacksman unless he had made payment bona fide before that they might exclude any other Creditor of the Principal Tacks-man for their Tack-dutie George Baptie contra Christian Barclay Eodem die CHristian Barclay having pursued George Baptie before the Commissares of Edinburgh for Solemnizing Marriage with her because he had gotten her with Child under promise of Marriage as was instructed by his Bond produced
obtained Decreet against him he Suspends and raises Reduction on this Reason that his Bond was vitiat in substantialibus by ocular inspection 2. That it was Conditional so soon as he was in readinesse 3ly That the Charger threatned she would drown her self for preventing whereof he had granted this Bond. 4ly That after the granting thereof she had carried her self unchastly and born another Bairn albeit it cannot be alleadged that ever he co-habited or conversed with her at all after this Bond which as it would dissolve the Marriage though it were Solemnized multo magis should it hinder the Solemnization The Charger answered to the first oppons the Bond wherein albeit there be three or four words delet in that place thereof oblidging him to Solemnize yet the acknowledgment of the Childs being gotten under promise of Marriage is clear and sufficient by it self To the 2. There is nothing alleadged that the Suspender is not in readiness To the 3. non relevat there being neither vis nor metus To the 4th non relevat because there being a second Child born after this Bond which constituts the essentials of a Marriage the Child is presumed to be the Suspenders nam Pater est quem matrimonia monstrant and it cannot be alleadged or proven that the Child belongs to any other or that the Charger used any evil carriage with any other The Lords having considered the Case found that the presumption was not sufficient unless it had been a formal Marriage and therefore Ordained the Charger to instruct the second Child was the Suspenders and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill Ianuary ult 1665. TWo Sisters called Kirktouns having obtained Decreet against the Laird of Hunthill for their Mothers Executrie who left Hunthill her Brother and two other Tutors to her Children in so far as concerned the means left them by their Mother Hunthill Suspends and raises Reduction on this Reason First That the only ground of the Decreet being a Confirmed Testament bearing That Hunthill compeared and made Faith and accepted the Office of Tutory this cannot be sufficient of it self to instruct he was Tutor Seing Acts of inferiour Courts prove not in any thing but in points of form of Process which are ordinary â—but in alijs prove not without a Warrand and therefore unless the Warrand of this acceptance were produced it cannot prove more then an Act of Tutorie or Curatrie or Cautionrie will prove without its warrand and therefore now they crave Certification against the same 2ly Neither their Subscription to the Act nor the Principal Testament it self can be found though the Registers of that Commissariot be searched and others about that time found neither can it be astructed with the least Act of medling any way 3ly A mother cannot name Tutors but the Father only it being Patriae potestatis It was answered that albeit in Recenti the warrands of such Acts ought to be produced or they are not effectual with out the same yet it being thertie seven years since this Confirmation after so may troubles the Chargers are not oblidged to produce the Warrands being such inconsiderable Litle Papers as they are but they must be presumed that they were so done as is expressed in the publick Record seing this Process has lasted these twvelve years and before nor since till within a year no mention thereof It was answered that there was no prescription run during which if at first the Chargers were oblidged to produce they are still so unless they could fortifie and astruct the truth aliunde and their silence saith nothing because it was the Chargers fault that pursued not till within these twelve years whereas if they had pursued timeously the Suspender would then have pursued a Reduction It was answered they were Minors in the Suspenders own house the former time who would not have keeped and intertained them at all if he had not known of the Tutory and that they had means The Lords found that this naked Testament was not sufficient to astruct the acceptance without further adminicles Elphinstoun of Selmes contra The Lord Rollo and the Laird of Niddrie 1 February 1665. THe Lord Rollo being addebted in a Sum to umquhil Mr. David Anderson of Hill Margaret Anderson his Daughter gave a Procuratorie to intromet with all Papers and to uplift all Sums belonging to her in Scotland to Iohn Anderson whereupon Iohn Anderson discharges the Lord Rollo and takes a new Bond from him and assignesit to Niddrie Thereafter Selmes getting Assignation from the said Margaret Rollo Suspends on double Poynding Selmes alleadged that he as Assigney had Right to the Sum. It was answered that Rollo was discharged by the Procurator before the Assignation It was answered primo that the Procuratory was null because it wanted the Designation of the Writer and Witnesses 2ly It was offered to be improven as false and fenzied It was answered to the first that the Procuratory was made in Ireland secundum consuetudinem loci where designation of Witnesses is not required but a writ being Sealed Subscribed and delivered before Witnesses albeit they be not designed the writ is effectual To the second the Lord Rollo having made payment bona fide to a Procurator albeit the Porcuratory should be improven the Debitor not being accessory but paying bona fide could not repeit otherwayes all commerce would be marred and no body will be secure to pay to any Assigney or Procurator but as payment made bona fide to them that have no Right is relevant only because it is done bona fide and necessarly so must it be good though they have forged the Procuratory It was answered that payment was not yet made but only a new Bond granted and that it could not be bona fide seing the Procuratory wanting the ordinar Solemnity of Witnesses designed might have given just ground of doubt and the Debitor was not to have payed without Sentence The Lords repelled the first alleadgeance and sustained the Writ according to the custom of Ireland being Nottour to themselves As to the other point the Lords did not decide in it till it appeared whether Niddrie would prevâ—â—â— upon the new Bond and make it equivalent to payment but they thought that payment made bona fide would be sufficient albeit the Writ were improven where there was no ground to doubt Sir John Fletcher Supplicant February 3. 1665. SIr Iohn Fletcher having bought the Lands of Crainstoun and finding that there was an Appryzing to be deduced thereof for his Authors Debt which might cost him trouble he craved Assessors to be appointed by the Lords who considering the matter amongst themselves It carried by the plurality of one or two to name two Advocats Assessors but many were on the contrary conceiving the example of it would be of great inconveniency seing Appryzings were not with continuation of dayes and if Parties compeared and alleadged they
were Infeft yet there may be Inhibition anterior Reversion or Trust or nullities in their Right and if these were denyed they behoved to be instructed and so Terms of Probation run while in the mean time the anterior Diligence of others Appryzings in the countrey before the Sheriff would prevent them and it would hinder any Appryzings ever to be deduced at Edinburgh and it were hand to put Creditors who knew not there Debitors Charter Chist to disput their Rights as in an executive Process But the Lords inclined that Sir Johns Infeftment should be rather produced and reserved out of the Appryzing then the Appryzing stopped Falconer contra Earl of Kinghorn Eodem die FAlconer pursues the Earl of Kinghorn for payment of a Bond wherein his Father was Cautioner It was alleadged the Bond was null as to Kinghorn because it mentioned in the first place three Witnesses to another Parties Subscription per expressum mentioning two without their designation or expressing whether they were Witnesses to either or both the two Cautioners and therefore the Bond was null by the Act of Parliament It was answered that according to the ordinar custome they offered to design It was Replyed that the designation behoved to be of living Witnesses for seing in it self the Bond is null by the Act of Parliament and that the Lords by custom have supplyed such Bonds per equivalentiam The intent of the Act of Parliament being only that by the Designation the Witnesses might be known and thereby a means of improbation afforded if the Writ were quarrelled but after the Witnesses are dead the Degsination of them cannot attain that effect The Lords Ordained the Pursuer to Design living Witnesses or otherways to condescend upon other Adminicles to astruct the verity of the Subscription of the Bond. Beg contra Beg. February 4. 1665. THomas Beg in Edinburgh having a Son of his first Marriage and providing his Children of two subsequent Marriages to his Means The Son of the first Marriage pursues his Father for his Mothers third and craves Annualrent therefore he being Minor and his Father his Tutor of Law and therefore lyable as other Tutors for Annualrent Which the Lords found relevant Paterson contra Pringle Eodem die ISobel Paterson having lent to Pringles Wife a 100. lib. scots and having received a Bond of Pringles in Pand thereof he thereafter seeking a sight of the Bond took it away without warrant whereupon she obtained Decreet against him before the Commissaries which He and his Wife Suspended on this Reason that he never borrowed any Sum from the Charger and if his Wife did borrow the same he knew nothing thereof or that it was applyed to his use and that she Impignorat his Bond without his knowledge or warrant The Lords found that her having of the Bond in her hand did infer a warrant to borrow the Money and oblidge her Husband being a matter of small importance Peter Pallat contra Thomas Fairholm â— February 7. 1665. THomas Fairholm Merchant in Edinburgh having written a Letter to Peter Pallat Factor at Burdeoux to Loaden him 30 Tun of Wine The tenor of the Letter is that in respect Fairholm was not acquainted with Pallat he had written upon the Credit of his Brother Ninian Williamson Factor at London who was Pallats ordinar correspondent to Load these Wines in that Ship which carried the Letter upon Fairholms accompt and bore That Williamson had Provisions to satisfie the same and that he would either remit to Pallat or draw upon him as he found convenient This Letter being sent under a cover of Williamsons to Pallat the Wines were sent into Scotland and Williamson broke about a year thereafter whereupon Pallat pursues for his Money from Fairholm who alleadged absolvitor because he having demanded the VVines not upon his own Credit but Williamsons and Williamson having sent under his own cover as Pallaâ—s Letter bears the said Order in which there being mention that Williamson had Provisions in his hand his sending the Letter of that Tenor under his own cover is an acknowledgment that he had those Provisions and thereby he constitute himself Debitor to Pallat and freed Fairholm likeas Pallat acquiesced therein and drew Bills upon Williamsonâ— which were accepted but not payed and was silent never demanding Money from Fairholm till Williamson was broken so that first Fairholm is free by the tenor of the Letter and next though thereby he had been bound yet the damnage sustained by Pallats silence till Williamson was broken whereby Fairholm was hindred to draw his Provisions out of Williamsons hand and thereby lost the same through Pallats fault ought to compence Pallat and exclude him Pallat answered to the first that he opponed the Letters which bore expresly the Wines to be sent for Fairholms accompt so that albeit it mention Williamsons Credit and that he had Provisions it makes him but expromissor and liberats not Fairholm as to the second anent the damnage Pallat being secured both by Fairhlom and Williamson might at his option take himself to either or to both and cannot be accompted to have done any fault in forbearance of either though an unexpected accident of Williamsons breaking interveened so much the more as Fairholms Letter does not order to draw upon Williamson but bears That Fairholme would either draw or remit at Williamsons conveniency So that Pallat has not failed in the strick observance of the Order And if need be Pallat offers him to prove by the custom of Merchants in the most eminent places abroad that such Letters did never liberat the Writer And Fairholm offered to prove that such Letters did liberat the Writer unless the receiver had protested and intimat to the Writer that he would not acquiesce therein simply but also in the Credit of the Writer The Lords found that the Letter did not liberat Fairholm notwithstanding of his forbearance to demand and therefore repelled the Defenses and decerned but liberat Fairholm from the exchange and re-exchange in regard of Pallats silence neither would the Lords delay the matter upon the opinion of Merchants David Graham contra George Bruce and Doctor Mairten Eodem die DAvid Graham upon the sight of a Bond unregistrat of George Bruces obtained Arrestment and therewith Arrested a Sum in Doctor Martines hand which was loosed and after the loosing Assignation being made by George Bruce to his Sister In which case the Lords found That the Arrestment being upon the Bond before Registration might be loosed and notwithstanding of the loosing seing it was not now payed by the Debitor they ordained it to be made forthcomand to the Arrester and preferred him to the Assigney albeit it was alleadged that the tenor of the Arrestment was but till Caution was found which being found albeit the Debitor could not oppose to make it forthcoming yet an Assigney after loosing the Arrestment may let The Lords considered that the Caution found in loosing Arrestments is overlie and insufficient
Terms run in the third unpayed the Tack should expire and be null ipso facto without Declarator It was answered that notwithstanding clauses so conceived The Lords hath been accustomed to put them to Declarator in which case they have the priviledge to purge the Failzie at the Bar and if need beis the Defender will now purge The Lords found the reply relevant in respect of the conception of the Clause and would not suffer the Defender to purge for albeit in Declarators against Feues ob non solutum canonem the Lords will suffer the Defenders to purge at the Bar when the pursuite is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is exprest in the Infeftment so Proprietars may pursue their Tennents for failzing to pay the Duties of their Tack and to find Caution in time coming else to remove when there is no such Clauses Irritant and then they may purge but when the Clause Irritant is exprest there is far less reason they should have liberty to purge in Tacks then in Feus where the penalty is much greater Pringle of Torsonce contra Ker of Sunderland-hall February 17. 1665. PRringle having appryzed the Right of a Wodset from the Heirs of Sir George Ramsay does thereupon require and charge for the Money It was alleadged that he cannot have the Wodset Sum unless he not only Infest himself in the Wodset and renounce the same but put the Defender in peaceable possession as he did possesse the Wodsetter from whom the Pursuer appryzed and who can be in no better Case then the Wodsetter himself The purâ—uer answered that he was willing to renounce all Right and Possession but could not put the Defender in Possession because a thrid Partie had intruded himself without the Pursuer or his Authors Fault and the Wodset being but a Pledge the Hipothecar is not lyable contra vim majorâ—m but only pro culpa lata levi Therefore if a Pledge be taken away by force it hinders not the Creditor to demand his Sum. The like must be in intrusion which is an Act of force and the Pursuer who hath only his Annualrent is not oblidged to consume the same upon recovery but the Defender may do the same The Defender answered that whatever might be alleadged in the Case of Intrusion if in continent the Wodsetter had intimate the same and required his Money yet this intruder has continued a long time The Lords found the defense and duply relevant to stop the payment of the money till the possession were delivered seing the intrussion was ex inter vallo James Butter contra Gray of Balbrino Eodem die JAmes Butter having pursued Gray for payment of a Sum of Money he alleadged prescription because fourty years had run from the date of the Bond being the last of December 1624. before any Judicial Act or other interruption done thereon The Pursuer replyed that he had cited the Defender upon the first Summons upon the 24 of December 1664. which was six days within the fourty years from the date 2ly It was much more within the 40 years from the Term of payment of the Bond from which only and not from the date prescription runs quia contra non valentem agere non currit prescriptio The Defender answered that the citation on the first Summons was not sufficient unless there had been an Act of Continuation or some Judicial Act within the 40 year Because the Act of Parliament bears expresly If the Creditor follow not and take document within 40 years the Bond shall expire The Lords found the reply relevant and that the Citation on the first Summons was sufficient being within 40 years of the term of payment Sir John Baird contra Magistrats of Elgine Eodem die SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel escaping out of their Prison who alleadged absolvitor because the Rebel had the benefit of the Act Debitor and Creditor and produced the Clerk of the Bills Certificat thereupon when he was offered to Prison and being Imprisoned joyntly for an other Debt The Magistrats protested that they excepted him not prisoner for this Debt It was answered that the benefit of the Act contains an express nullitie if the Annualrents be not payed conform thereto The Defenders answered that they could not be Judge to the discharge and that upon the like case of a Protection of the Kings the Magistrats of Strivling were liberat The Lords repelled the Defense unless the Clerks attest the discharge had been first produced or shown to the Magistrats before the Prisoner was let go In which case they might either have refused him or let him goe free Marquess of Huntly contra Gordoun of Lesmore February 22. 1665. THe Marquess of Huntly as Donatar to the Forefaulture of the Marquess of Argyle as to the Estate of Huntly obtained Decreet of Parliament against Gordoun of Lesmore for payment of the Mails and Duties of certain Lands and for removing therefrom He Suspends on these Reasons First That the Decreet was null not preceeding upon lawful Citation but far fewer dayes then is appointed by Law and that he was absent and now alleadges that his Right to the Lands in question was by excambion with the Marquess of Argyle for Lands holden of the Marquess of Huntly which he had possessed thirtie or fourtie years before and thereefore if the Pursuer were dispossessed of the Lands in question he behoved to possesse him in other Lands 2ly The Decreet is null as not proceeding upon tryal of an Inquest cognoscing the Marquess of Argyle Heretable possessor five years before conform to the Act of Parliament nor could that be cogâ—oâ—â—ed because the Defender himself was Heretable possessor these years 3ly The Defenders Right from the Marquess of Argyle albeit it was post comissum crimen yet the cryme was latent proceeding upon missive Letters of his that was found out of the English hands which the Defender could not know The Pursuer answered to the whole that he opponed the Decreet of Parliament which ought not to have been Suspended by the Lords of Session who are not Judges to Decreets of Parliament who may dispence with the Dyets and Solemnities of Law and the Pursuer insists not upon the benefit of the five years possession but upon this ground that the Defenders Rights from the House of Huntlie or from Argyle were holden base of Argyle and not confirmed by the King and therefore by the Forefaulture of Argyle the Superiour who by his Right came in Huntlies place these unconfirmed base Rights fall Which the Lords found relevant and in the same Process Mails and Duties being but generally decerned without expressing the quantities The Lords ordained the Pursuer to condescend upon the quantities and gave him a term to prove Viscount of Kingstoun contra Collonel Fullertoun Eodem die THe Viscount of Kingstoun pursues Collonel Fullertoun upon the
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because it
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
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
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
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
offered to be proven that he broke up Iohn Ramsays Celler and took them out 3dly The Colonel Impignorat them by Writ and so the Presumption of allienating them ceased because he went immediately out of the Countrey and never returned It was answered that there is no difference of Jewels more than any other Moveables which use to passe without Writ from Jewellers that sell them and the Pursuer having possest them these 10. or 12. Years without question has right thereto by usucapion The Lords found the alleadgeances joyntly relevant to elied the presumption and that there is no usucapion in Moveables in Scotland by Possession in less then 40 years but only a presumptive Title which is altogether eleided by the Answers Duke of Hamiltoun contra Laird of Clackmanan December 14. 1665. THe Duke of Hamiltoun as Collector of the Taxations 1633. charges the Laird of Clackmannan who Suspends and produces Discharges of the first three Terms It was alleadged these discharges could not liberat because they were granted by Iohn Scobie who was neither Sheriff Baillie nor Clerk nor does it appear that he had any Warrand or Commission nor does his Discharges mention any Commission or Warrand It was answered that by the Discharges produced it appears that Ormistoun and Humbie deputed for the Duke had granted Discharges to this Iohn Scobie and offer to prove that he was in use of uplifting the Taxations during the Terms themselves and was commonly repute as Collector thereof which must be sufficient post tantum tempus It was answered that that ground would not oblidge the Sheriff and so both the Heretor and Sheriff being free the King looseth his Right Yet the Lords sustained the Reason Monteith contra Mr. John Anderson December 15. 1665. IN a Reduction at the instance of Monteith against Anderson a Reason of payment being found relevant Mr. Iohn produced an Incident at the first Terme and a Diligence against Witnesses for proving the having of the Writs at the second Term. Which Incident the Lords sustained and would not restrict the Terms of probation in the Incident to Horning against the Witnesses and Caption but allowed four Terms and ordained the same to be shorter Mr. John Elies contra Keith Eodem Die THere was a Bond of 6000 merks granted by Wiseheart Parson of Leith and Keith his Spouse to Mr. Iohn Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands with a Procuratorie The Wife had then the Lands of Benholm belonging to her Heretablie lying in the Mairns Mr. Iohn having Inhibite her Husband and her she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns and having thereafter right to a Sum of 10000 merks for which she was Infeft under Reversion in other Lands an order of Redemption was used and the Money consigned Mr. Iohn Elies pursues a Declataror to hear and see it Found and Declared that the said Keith was oblidged to infeft him in an Annualrent out of her Lands which she had fraudulently Disponed contraire her obligation and therefore was now oblidged to Infeft him in other her Lands or to pay the Sum as damnage and interest and that therefore any other Lands or Rights belonging to her might be affected for his payment and particularly the Wodset now in question Compearance was made for the Defenders Grand-child who had a Right from her Grand-mother to the Wodset who alleadged First That the Bond bearing an oblidgement for Debt granted by the Wife stante matrimonio was null It was answered that albeit the Personal oblidgment were null yet the oblidgment to Infeft in an Annualrent granted by a Wife is valid either against her Heretage or Liferent and alleadged several Dicisions therefore It was answered that the Wife might do so if she had borrowed money for her own use or were principally bound to Infeft in an Annualrent but this oblidgment being in security of her Personal obligatigation with her Husband the principal obligation being null the accessory is also null The Lords repelled the alleadgeance and found the oblidgement to Infeft valid albeit accessory because Deeds and Obligations of Wyfes not to affect their Persons but Estates are valid and albeit she had not been bound for the principal Debt she might either have effectually disponed an Annualrent or which is all one oblidged her self to Infeft in an Annualrent out of her Heretage utile per inutile non vitiatur It was further alleadged that this Wodset or Sum disponed to her Oy could not be affected because her Oy was the youngest of many Oyes and did no wayes represent her The Lords sustained this Member of the Declarator also upon the Act of Parliament 1621. against Dispositions between Conjunct Persons without a cause onerous which they found might either be a ground to reduce the same or to declare the same to be affected as if the Right were in the Disponers Person Herein it was also lybelled That this Wodset albeit acquired after the Inhibition yet seing it lay in the same Shire where the Inhibition was published the Grand-child's Right were Reduceable upon the Inhibition The Lords thought so because Inhibitions being Personal Prohibitions reach both acquisita and acquirenda by the Person Inhibit in the Shires where it is published Laird Kilbocho contra Lady Kilbocho December 20. 1665. THE Lady Kilbocho by her Contract of Marriage being provided to certain Lands with this provision further that she should have the Liferent of all Lands Conquest during the Marriage whereupon she obtained a Decreet in the English time which being now under Reduction It was alleadged the Clause of Conquest could only give her the Lands Conquest with the Burden of the Annualrent of a Sum due by the Defunct to a Person from whom he bought the Land as being a part of the Price of the Land especially seing by a writ under the Defuncts hand he acknowledged that this Bond was granted for a part of the Price It was answered First That a Personal oblidgement cannot affect the Land neither can it affect the Ladies Person but if the Defunct had pleased he might have granted an Annualrent out of the Lands Conquest which then would have affected it which not being done his declaring that this Sum was a part of the price cannot be effectual nor can infer a Probation against his Wife in prejudice of her anterior Right Secondly This alleadgeance might be proponed as well against the Heir of Conquest as Liferenter thereof and yet it was never found that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it nor yet to relieve the Heir of Lyne thereof but on the contrair the Heir of Conquest has relief against the Heir of Lyne for Personal Debt though borrowed for acquiring the Right The Lords found that the Case was not alike with the Heirs of Conquest whom Defuncts do Infeft without
any burden and Liferenters who having a speciall Competent Provision this general Clause being but adjected as uncertain is not so favourable or so to be extended seing the Husband did not Infeft the Wife in his own time in the Conquest And therefore found her to be lyable to the Annualrent of this Sum which they found instructed by the Hubands Declaration where the Ladies Father is a subscribing Witness Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die WAlter Young Iohn Govan and Hendrie Hope by a Letter written to any that they should Buy Kows from in the Highlands desired that they might use the Bearer of the Letter kindly and for whatever quantity of Kows they bought they should answer such Bills as he should draw upon them therefore Hendrie Hope being broken Iames Gray as Assigney pursues the other two for the whole who alleadged they were only lyable for their own Parts It was answered that they were oblidged to answer such Bills as the Person intrusted by them should draw and they produce a Bill drawn by him upon them or either of them It was answered that such Bills can only relate to the Quantity and not to the Quality and manner of oblidging seing if they had so intended they would have oblidged them and either of them or it would have born what he should draw upon them or either of them should be answered The Lords found every one of them lyable in solidum for they thought that the Clause being dubious was to be interpret against the Writers and the Sellers of the Kows were bona fide to rest upon the interpretation of the Persons intrusted Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665. SIr Iohn Leslie as Assigney constitute by Sir William Dick to a Bond oblidging Francis Sinclar as Principal and young Dun as Cautioner to deliver 30 Chalders of Bear at 10 merk the Boll Dun alleadges absolvitor because he was Minor in Familia Paterna and so his Father was his Curator of Law and therefore his subscribing as Cautioner was null being without his Fathers consent It was answered the alleadgeance was not competent by exception against a clear liquid Bond. Secondly That the Defense is only competent in the Case of Curators chosen The Lords found the Defense Competent by way of Exception but before answer to the Relevancie ordained the Parties to condescend upon Duns age the time of his Subscription and whether he did then administrat or go about any other affairs Dame Rachel Burnet contra Lepers December 23. 1665. BY Contract of Marriage betwixt Mr. Iohn Leper and his Father and and Dame Rachel Burnet on the other part both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel who with concurse of Prestoun her present Husband pursues the Sisters of the said Mr. Iohn Leper as Heirs and otherwayes representing him and their Husbands for their entrests and likewise Doctor Balfours Wife only Daughter of an of the Sisters as Heir to her Father and Mother against whom there was Decreet of Registration obtained during their Lifetimes together and on this ground That the Defuncts Husband did by Contract of Marriage Disposition or otherwayes obtain Right to the Portion of his Wife one of the Sisters and Heirs and therefore is lyable in payment in quantum lucratus est It was alleadged for Doctor Balfour and his Wife that she was willing to renounce to be Heir to her Mother but as for the other passive Title as representing her Father who was locupleâ—ior factus it is no wayes relevant for Marriage is a cause onerous and Tochars are granted ad sustinenda onera matrimonij and therefore are never counted fraudulent deeds or without an onerous cause nor do they fall within the Act of Parliament 1621. against fraudful alienations neither was the Defenders Father lyable though there was a Decreet of Registration against him because before any Execution the Marriage was dissolved It was answered for the Pursuer that that member of the Lybel stands relevant because the Defenders Mother being Heir to her Brother the Contracter could not transmit her Estate to her Husband without the burden of her Brothers Debt and it is a most unquestionable Ground in Law and Equity quod nemo debet cum alieno damno locupletari and therefore Creditors are still preferred to Portions of Children though given for their Tochar The Lords found that Member not Relevant that Decreet was obtained against the Husband and Wife stante matrimonio seing it received not Execution and as to the other Member they thought that if there were but a moderat and ordinar Tochar proportionable to the burdens of the Marriage it would not infer Repitition or if the Tochar was great or an universal Disposition of all the Heirs Right they thought the Husband would be lyable in so far as it was above a proportionable Tochar and therefore before Answer Ordained the Contract of Marriage to be produced and the Pursuer to condescend if there was any other benefit accresced to the Husband by his Wife then by vertue of the Contract It was further alleadged for the Lady Pitmedden one of the Sisters on Life that she could only be lyable for her own sixth part as one of the six Heirs Portioners It was answered by our Law that all Heirs were lyable in solidum There was several Decisions alleadged on either hand on the 7. of February 1632. Hoom contra Hoom Where the Lords found the Heirs Portioners lyable but for their own share Another February 15. and March 21. 1634. Watson contra Or Whereby one of the Daughters having a Disposition of the whole Estate was found lyable for the whole Debt And another Ianuary 24. 1642. Where one of the Heirs Portioners having Disponed her share to the other and thereby being insolvent that other was found lyable in solidum The Lords having considered the Case found the Heir Portioner lyable iprmo loco only for her own share untill the rest of the Heirs Portioners were discust but determined not whether these who were solvendo should be lyable in solidum albeit the Debt exceeded their Portion or only intirely for their own share and for as much more as the value of their Succession could amount to Laird of Cesnock contra Lord Bargany Eodem die THE Laird of Cesnock and the Lord Bargany and Balcarras being bound conjunctly and severally in a Bond Cesnock being distressed for the whole takes Assignation and pursues Bargany for two thirds who alleadged payment and because it was a publick Debt he produced an incident in termino which the Lords sustained not because it buire no warrand to cite Cesnock the Principall Partie and the Executions were within 48 hours by one Person in Kyll Renfreu Fyfe and Edinburgh and so suspect but they superceeded Extract of the Decreet to the first of November contra Wilson and Lodwick Callender
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
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
therefore ordained them to Condescend Archbishop of Glasgow contra Commissar of Glasgow Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator or to hear and see it found and Declared that Commissars ought to be persons qualified and able to judge according to Law and that if they be not they might be deprived by the Act 1609. empowering the Bishops then restored to appoint able and sufficient men Commissars in all time coming and by the Act of Restitution 1661. whereby the like power is granted excepting Commissars nominat by the King unless he be insufficient or malversant and subsumes that Mr. William Fleming is not sufficient nor qualified for that Place and also that by the injunctions given to Commissars mentioned in the Act 1609. there is no place for Deputs unless it were by special consent of the Bishops and craves that it may be declared that the said Mr. William may not Serve by a Depute The Pursuer insisted on the first member It was alleadged for the Defender that he had his Place both from the King and Bishop Fairfoul confirming the same with a Novo damus and therefore though he might have been questioned before the said Ratification and new Gift yet now he cannot be questioned upon insufficiency but only on Malversation whereof there is no point alleadged nor condescended on nor is his insufficiency qualified by any Act of inorderly Process or injustice committed by him now these five years and as Bishop Fairfoul who acknowledged him to be a fit and qualified Person by his Ratification could never quarrel him upon insufficiency neither can this Bishop 2ly The Defender has his Place with power of Deputation and therefore having given eight thousand merks to the former Bishop for his Ratification with power of Deputation he cannot be questioned on his sufficiency being able per se aut per deputatum and no Act alleadged of injustice It was answered by the Pursuer to the first Defense that albeit this same Bishop had admitted this Commissar upon hopes of his Qualifications yet if contrair to his expectation it appears he is not qualified for so eminent a Judicature He may justly quarrel him of insufficiency as well as a Minister whom he ordained 2ly Though the same Person might not yet his Successor in Office might and is not bound to acknowledge what his Predecessor did by mistake or otherwayes to the detriment of the Sea which were in his option without a Rule or requiring Qualifications as the naming of Commissars To the Second albeit Deputs were allowable as they are not by the Injunctions yet the principal Commissar who must Regulat and answer for them must also be qualified both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts The Lords found that Member of the Lybel on the Qualifications and sufficiency Relevant My Lord Ley contra Porteous Feb. 15. 1666. MY Lord Ley having Right by progress to the Reversion of an old Wodset uses an Order and pursues Declarator thereupon The Defender alleadged no Declarator because by the Reversion there is a Tack to be granted to begin after Redemption and to continue for so many years It was answered that Tack was null and invalide not only by Common law as an usurary Paction giving the Wodsetter more then his ordinary Annualrent but by a special Act of Parliament Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets to endure long time after the Redemption for the half mail or near thereby shall not be keeped and as by the late Act of Parliament between Debitor and Creditor it is provided that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth the Wodsetter may upon offer of Caution for the annualrent take Possession unless the Wodsetter offered himself to be comptable for what exceeds his annualrent It was answered for the Defender that his Defense stands yet Relevant notwithstanding the answer for as to the old Act of Parliament it is in desuetude and it hath been the common custom to grant such Tacks in Reversions which have still been observed and were never quarrelled neither are they usurary seing the Tacksman has the hazard of the Fruits and all burdens so his Tack-Duty how small soever unless it were elusory can be no usurary paction more then taking Lands in a proper Wodset which pay more then the true annualrent which was never found usurary 2ly This Wodset is granted since that old Act whereby the benefit thereof is totally past from As to the new Act the Clause bears expresly that during the none Redemption or none Requisition the conditions therein shall take place which cannot be extended to a Tack to be granted after Redemption It was answered that the first Act bears not only a Regulation of Wodsets already then granted but to be granted bearing expresly who takes or has taken Lands in Wodsets c. and there is nothing in the Wodset to renunce the benefit thereof As for the custom Acts of Parliament are not derogat by custom of privat parties aâ—quiescing in their agreements But the custom of the Lords by current Decisions As to the last Act it ought to be drawn ad pares casus and the Lands are not effectually Redeemed till the Tack be ended The Lords found the last Act no ground for annulling such Tacks but found the first Act a good ground if it were subsumed according to it that the â—ands were set for half Mail or thereby Lyon of Muiresk contra Gordon and others Eodem die JOhn Lyon of Muiresk having obtained Decreet of Spuilzie of certain Goods against Gordon and others they suspend and alleadge the Act of Indemnity that they took these Goods being under the Command of the Marquess of Hunlly It was answered that the Charger was in friendship with the Marquels and on his side and so they cannot Cloath themselves with the Act of Indemnity as done upon hostility 2ly The Act Indemnifies only Deeds done by Command and Warrant of any pretended Authority but here no such Order is alleadged It was answered that Orders were not given in Writ and if none get the benefit of the Indemnity but these can shewâ— or prove Orders few or none will enjoy it nor need the Suspenders to Dispute whose side the Charger was on seing they acted by Order The Lords found that it was sufficient to alleadge that the Charger was the time of the Intromission actually in Arms and acted it with a Party being then in Arms but needed not prove their Order or the application of the Goods to publick use but found it Relevant if it were offered to be proven by the Suspenders Oath that they had no Warrant or Order or pro ut de jure that they applyed them to their own privat use not for any publick use Iames Borthwick contra Ianet Skeen Feb. 16. 1666. JAmes Borthwick having obtained Reduction of Ianet Skeens Liferent-right as a
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
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ— because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ— in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâ—lared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâ—uetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
pursues for the Teinds of Kello and Cumerjame upon the Infeftment of Relief He had before obtained Sentence for the Years preceeding John Stewarts death during which his temporal Provision stood and as to which there was litle controversie by the Act of Rehabilitation but now the Pursuer insisted for the years after Iohn Stewarts death It was alleadged for the Defender First That he has Right by his Tack unexpired from the Earl of Hoom who had the only Right of Fee to the whole Abbacie by his Infeftment granted to him by the King long before the Infeftment granted to Iohn Stewart It was answered that the Earls Infeftment proceeding upon Iohn Stewarts dishabilitation that being rescinded and he rehabilitat the Earls Infeftment fell in consequentiam and John Stewarts Right on his own dimission is the only Right It was answered for the Defender that the Earl of Hooms Right did not proceed solie upon John Stewarts dishabilitation but on the Act of Annexation following thereon Anno 1612. And Johns Rehabilitation could put him in no better condition than before the Dishabilitation and so could extend no further but to the Personal Provision he then had It was answered That in that special Act of Annexation 1612. The Spirituality or Teind was excepted as it was in the General Act of Annexation and so no Right granted by the King till the Teinds were dimitted in his hand by the Titular could be respected as being a non habente potestatem at least not proceeding legitimo modo It was answered that the Teinds though not Annexed yet by the suppression of the Popish Clergie they returned to the Crown for the General Act of Annexation doth not give the King a Right but acknowledged his Right by the Ceasing of the ends for which these Benefices were granted but the Annexation makes them indissolvable from the Crown and indisposable by the King and so the Teinds being Annexed they cease not to belong to the King but they are at his Disposall and he having disposed of them to the Earl of Hoom before he disposed of them to John Stewart the Earls Right is preferable and so the Defenders as his Tacksman It was answered That all the Erections of Benefices in Temporalities were only upon Demissions of the Titulars for though the Popish Clergie was supprest yet the King presented Persons to the Benefices who had the Titles of Abbots and Commendators and sat in Parliament but had not the Office and in so far they were not supprest and so the King could not dispose of the Benefice till it were demitted by the Titular in his hands It was answered that the King could not dispose in prejudice of the Titular incumbent but that the Titular who was a naked Liferenter his Demission should reach the Fee it was against reason and John Stewart being dishabilitat when the King granted the Earl of Hooms Right so that there could be no Demission the King being in the Commendators place and could not demit to himself the dishabilitation at least was equivalent to a Demission though it had been necessar as it was not for albeit de facto the King Erected upon demissions yet that he could not after the Abbots death have Erected it or provided another or even during his Life reserving his temporal provision there could be no doubt else the Demission of a Liferenter or Administrator could never give the King Right of Fee which the Resigner had and here the King had the Right of Fee but not the Resigner Yet the Lords foundâ— that seing all Erections by Custome proceeded on Demissions that the Earl of Hoom's not proceeding so and John Stewart's proceeding upon his Demission was preferable and therefore repelled the Defense It was further alleadged that Iohn Stewart had Ratified the Defenders Tack It was answered that was but personal and could not be Relevant against the Defender being a singular Successor It was answered that the Pursuers Interest being but for relief the Defender could satisfie and pay erest upon Assignation and so his singular Title not being absolute might be so purged Which the Lords found Relevant Lord Colvil contra Town of Colross February 27. 1666. THE Lord Colvil being Infeft in the Heretable Office of the Baillerie of Culross by progress from the Earl of Argyl first Baillie who was Infeft by the Abbots before the Reformation having full power of all Jurisdictions Civil or Criminal and of all the Amerciaments Bloods and Casualities to his own behove he does thereupon pursue a Declarator of the Right against the Town of Culross which is within the Lordship of Culross that he had Right to the Bloods and to all Jurisdictions Civil and Criminal amongst the Burgesses thereof It was alleadged for the Defenders absolvitor because their Town was Erected in a Burgh Royal by the King with power of Heading and Hanging and other priviledges of Burghs Royal by vertue whereof they have been in immemorial Possession in Exercing all Jurisdiction Civil and Criminal amongst their own Burgâ—sses The Lords before answer having ordained either Partie to adduce Wâ—â—nesses as to the Possession of their Iurisdiction which being closed the Debate was reassumed upon the Towns Right and Possession It was answered for the Pursuer that he and his Authors being Infeft in the said Heretable Office long before the Erection and before the Anuexation of the Abbacie of Culross to the Crown no Right granted thereafter to the Town could prejudge his established Right especially seing in the very Act of Annexation such Bailleries are expresly reserved and declared to be unprejudged And as to the Towns Possession It was but clandestine and not total for the Baillies did still exercise Jurisdiction even upon Burgesses of the Town committing Bloods in the Town and likewise Strangers committing Bloods as is instructed by his Court-books and Witnesses which is sufficient to hinder Prescription It was answered that the Defense stood yet relevant for the granting of the Bailliery could not be exclusive of the granters own Jurisdiction but cumulative and as the Abbots so the King retained Jurisdiction and might dissolve a part of the Barony which thereby ceased to be within the Jurisdiction of the Bailly of the Baronyâ— and might Erect the same in a Burgh Royall as he has done in the same way as the King after granting an Heretable Sheriff-ship may yet Erect a Barony within the same which may exclude the the Sheriffs if the Baron use diligence The Lords found that the Erection of the Burgh Royall being after the Constitution of the Baillerie could not exclude the same of its Jurisdiction and Casuality unless it had been by Possession sufficient to make prescription and that the Case was not alike as if the Barony of a Baron were constitute within an Heretable Sheriff-ship because the Casualities of the Heretable Sheriff-ship belonged to the King himself and could be only understood without prejudice of subordinat Jurisdiction of Baronies which were
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself as
Heir to his Father by Intromission with the Mails and Duties of the Lands wherein his Father dyed Infeft as of Fee for payment of a Debt of his Fathers who alleadged absolvitor because any Intromission he had was by a Warrand and tollerance of Sir George Kinnaird who stood Infeft in the Lands upon a Gift of Recognition It was answered non relevat unless the Gift had been Declared before the Defenders Intromission because the Gift would not have given Right to the Donatar himself to possess The Defender answered that the Gift was Declared before the Intention of the Pursuers cause which Declarator albeit after Intromission yet must be drawn back to the Gift to purge the vitiosity of the Defenders Intromission in the same way that the Confirmation of a Testament will purge anterior vitious intromission the Confirmation being before the intenting of the Cause The Lords found the Defense relevant to elid the passive Title seing any colourable Title is sufficient to excuse the vitiosity but did not find that the Declarator before intenting the Cause had the same Effect as a Confirmation because by constant Customs such confirmations purge the preceeding vitiosity which has never yet been found in this Case of an Heirs intromission with the Rents of Lands but the Lords found the Defender lyable for the single value of his Intromission Alexander Burnet contra Iohnstouns Eodem die JOhn Iohnstoun having disponed the Lands of Fraster-hill to Gordoun of Lesmore whose Right Alexander Burnet having appryzed and by the appryzing having Right to the Clause of Warrandice contained in the Disposition charges Iohnstoun the Disponer to warrand the Right against a posterior Right granted by him to William Iohnstoun who had obtained first Infeftment It was answered that the Warrandice could have no effect because there neither was nor could be a distress in so far as in William Iohnstouns Disposition Iohn Iohnstouns and his Wifes Liferent were reserved during whose life he could never distresse Burnet 2ly It was Burnets authors fault that for many years he did not take Infeftment having long Right before the second Disposition It was answered that Iohnstoun himself could never object this delay to excuse his fraudulent Deed of granting double Dispositions whereby Parties become infamous by the Act of Parliament 1540. cap. 105. and unto the other point albeit there was no present distress yet there was unquestionable ground of a future distress against which the Defender could answer nothing that could elid it and who being but a naked Liferenter if no execution should pass upon the Clause of Warrandice during his Lifetime he would be fully frustrat The Lords decerned Johnstoun the Disponer to purge the posterior Disposition granted by him and found neither of the alleadgeances in the contrair relevant Brown and Duff contra Bizet July 18. 1666. BRown and Duff having obtained Decreet against Bizet for a Sum due to Umquhil Andrew Duff Merchant in Polland Bizet raises Suspension and Reduction upon this Reason that this Sum having been in bonis defuncti the Charger could have no Right thereto till it were established in their Persons by a Confirmation in Scotland by the Commissaries of Edinburgh ut in communi patria It was answered moveables sequuntur personam and therefore wheresoever the moveables be they are regulat according to the Law of the place where the Defunct resides and it is instructed by the Testimony of the Consul and Counsel civitatis Regiae pusensis that by the Common Law and Law of that place moveables belonged to the Wife and Bairns and the Pursuers were so cognosced by them declaring the said Clares Brown Wife and the said Duff the only Daughter of Andrew Duff and therefore they have sufficient Right without Confirmation in Scotland which appears by the Act of Parliament James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do and that it was so decyded the 16. of Feb. 1627. Lauson contra Bastil Kello It was answered that it was otherwayes decided in the Case of Rob contra French 25. Feb. 1637. And there was no reason that these that lived out of the Country animo remanendi should be in better condition then these that resided in the same and behoved to Confirm and to pay the Quot The Lords found that the Testament behoved to be Confirmed by the Commissars of Edinburgh for having considered the old Act of Parliament they found that the poynt there ordered was to what Judicatures the Merchants going abroad to Trade should be lyable and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their Testament would be confirmed viz. where they had their Domicills but these that went out of the Country to remain are excepted but nothing exprest where their Testament should be Confirmed and for the Decision the Point in question was not whether a Confirmation in England was valid but whether a Confirmation without an Inventar was valid and therefore seing nothing was objected against the Confirmation it self The Lords did justly find that the wanting of an Inventar in an English Confirmation where that was the custome did not prejudge it neither is the Case determined by the Decision betwixt Rob and French in respect that the Executor having Confirmed in England and rather being Confirmed by the Legatars would not own the Confirmation but renunced the same and therefore the Lords found no Consuetude or Decision in the Case but determined the same ex bono aequo Hellen Millar contra Watson Iuly 21. 1666. WAtson having obtained a Decreet before the Lords against Hellen Millar for the Rent of some Tenements in Glasgow she Suspends and raises Reduction on these Reasons First That the Decreet was null as being ultra petita in so far as the half of the Duties was only lybelled and the whole was decerned 2dly That Watson's Right was as Heir to Watson who was first Wife to Brown who stante matrimonio acquired this Right to him and her and the one half to her Heirs and the other to his which was a Donation betwixt Man and Wife revocable and revocked by the Infeftment granted to Hellen Millar in Liferent his second Wife It was answered that the Decreet being in foro contradictorio was irreduceable 2dly That the Right was not granted by the Husband to the Wife but acquired from a third Partie The Lords reduced the Decreet finding that it was visibly Extracted by error of the Clerks being ultra petita and therefore sustained the second Reason albeit it was omitted that it was a Donation betwixt Man and Wife being acquired to the Man and Wife and so presumed to be by his means which is equivalent as if he had been Author unless that Watson could condescend that it was by the Wifes means Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh Eodem die GAvin Hamiltoun as Assigney by the Collector of vaccand Stipends
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâ—kitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ— and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ— by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ— and the distress occurring against the
obtained Decreet cognitionis causa and David being now dead he pursues James Chrystie as now appearand Heir to his Debitor for Adjudication of an Annualrent as belonging to the Defunct Debitor out of the Lands of Bassilie It was alleadged for the Defender absolvitor because that Annualrent was but base never cled with possession and the Defender stands validly Infeft singulari titulo The Pursuer answered that the Defense is not competent hoc loco when the Pursuer is but suo periculo craving Adjudication of his Debitors Right and cannot be forced to dispute the same till after Adjudication he use diligence for getting of the same but this Defense will be Competent whensoever upon his Adjudication he shall pursue The Defender alleadged a Pratique betwixt Sâ—haw of Sornbeg and the Lord Forrester wherein Forresters publick Infeftment was excepted in the Adjudication Yet the Lords shewed no Inclination to follow that Pratique and therefore Repelled the Defense and Adjudged Mr. Iohn Abercromie contra Anderson Eodem die MR. Iohn Abercromie as Assigney having pursued Anderson as Debitor for the Debt Assigned he alleadged no Process because the Assignation was posterior to the date of the Summons and Executions so that the Assignation being his sole Title the Process could not be sustained It was answered that the Defender had no prejudice and that the Cedent concurred It was answered that the Summons was not in the Cedents name and so his Concourse could operat nothing so that the Decreet thereupon would be null For in the like case the Lords last Week in the Cause betwixt David Hamiltoun and Iohn Kennedy and Symintoun Reduced an Appryzing led tvventy years since because the Appryzing proceeded upon a Charge to Enter Heir and some of the Debts vvere Assigned to the Appryzer after the date of the Charge As to which the Lords found the Appryzing null The Lords sustained the Defense and found no Process and had respect to the said Decision of Reduction of the Appryzing which they found to be as is râ—aâ—ed though it was alleadged that after so long time an Appryzer was not oblieged to produce the Letters of Appryzing or Charge to Enter Heir or Executions yet seing de facto these were produced and deduced in the Appryzing and mentioning the dates as aforesaid the same was Reduced pro tanto but there was no debate reported whether it should stand pro reliquo or how far it should extend seing the Appryzer as to the rest offered to prove it satisfied by Intromission Alexander Downy contra Robert Young Nov. 17. 1666. UMquhil Alexander Downy granted an Assignation to his Oye Alexander Downy of tvvo Bonds vvho finding that after his Goodsires Decease Mr. Iohn Hay vvas Confirmed Executor to his Goodsire and had given up these bonds in his Inventar but had not recovered payment He Confirms himself Executor ad non Executa to his Goodsire and pursues the Debitors for payment of the Bonds Compearance is made for Robert Young who alleadges that he is Executor Daâ—ive to Mr. John Hay vvho Execute Downies Testament by obtaining Sentence for payment of their Bonds so that the Bonds vvere no more in bonis of Alexander Downie but of Mr. John Hay and that the Testament being Execute by Decreet there could be no Executor ad non executa to Downie the first Defunct It was answered that the Testament was not Execute by a Decreet unless the Executor had obtained payment especially where the Executor was a meer stranger and was neither nearest of Kin Creditor nor Legatar The Lords found the Testament of Downie Execute by Hay by the Sentence obtained in Hayes Name and therefore found that Alexander Downie the Oye his Confirmation as Executor ad non executa null It was further alleadged that Downie being not only Executor but Assigney by his Goodsire the Assignation though it had been but a Legacy would have been sufficient against Mr. Iohn Hay who is the Cedents Executor and therefore is also sufficient against Young who is the Executors Executor and so represents the first Defunct Downie the Cedent It was answered that Young was not only legitimo modo the Executor but he is also Creditor of the first Defunct Downie in so far as he is Donatar of the Escheat of Iohn Hilstoun and thereupon has obtained Declarator and so is in the place of Iohn Hilstoun to whom umquhil Alexander Downie was Debitor by his Ticket produced whereby Downie acknowledges that he had in his hands Goods worth 6000 pounds belonging to him and Hilstoun in Copartinary and obliged him to be comptable therefore which is anterior to the Assignation granted to Downies own Oye for Love and Favour whereupon he hath Reduction depending against the Assignation as in fraudem Creditorum It was answered that the Ticket in relation to the Copartinary was not liquid bearing only an Obligment to be comptable with express Exception of desperat Debts and others The Lords found that in respect the Debt was not liquid Downie the Assigney ought to be preferr'd and get payment but Ordained him to find Caution that in case Young prevailed he should refound William Blackwood contra Adam Purves Nov. 20. 1666. ADam Purves pursues Reduction and Improbation of two Bonds alleadged granted by him to Ianet Baxter and of an Appryzing led thereon against certain Tenements in Edinburgh belonging to him and craved Certification contra non producta William Blackwood to whom by progress the Right is now come produces the Appryzing and the Extract of one of the Bonds whereupon it proceeded and alleadges no Certification against the Letters and Executions of the Appryzing after so long time the Appryzing being led in Anno 1621. and no Process of Reduction Rais'd till after the year 1650. Which the Lords found Relevant Likeas he further alleadged no Certification for not production of any of the principal Bonds because they were Registrat in the Registers of Session and the Principals were lost The Pursuer answered that there were pregnant Points of Falshood viz. Purves having gone and left the Kingdom in Anno 1618. And having been a Souldier Abroad till the year 1630. and these Bonds and the Appryzing thereon both in one Month and the Bonds granted to a Woman who had no such Estate but the Servant of a Waiter of an evil Fame and one Blair a Witness who was hang'd for Falshood The Lords refused Certification for not production of the principal Bonds but prejudice to the Pursuer to insist in his Improbation by these or other Evidences by the direct manner but they admitted Certification against that Bond the Extract whereof was not produced yet conditionally to a time that the Defender might upon the Adminicle of the Appryzing Insist to prove the Tenor. The Parochioners of Port Supplicant Decem 4 1666 THe Parochioners of Port having built a Manse upon the Gleib to their Minister where there was no Manse before and having valued the same according to the late Act
The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter it must be proven by Writ he being dead that it was delivered and not by Witnesses for there is nothing more frequent then Parties upon intentions to subscribe Bonds Assignations and other Rights and yet do not de facto deliver them or if they have been delivered to satisfie them and retire them and if Witnesses were admitted to prove the delivery or redelivery of such Writs the Lieges would be in extream unsecurity contrary to our Law that admits not Witnesses above an hundred Pounds and therefore Chirographum apud debitorem repeatum praesumitur solutum which presumption cannot be taken away by Witnesses The Pursuer answered that though this holds in Bonds where there is a Debitor and no other adminicle to instruct the Debt yet this is an Assignation and the Cause thereof otherwise instructed and most likely to be truely done and it is offered to be proven that this Assignation was delivered back to Mr. Alexander to be made use of as Agent for the Pursuer The Lords refused to sustain this Member of the Probation but because of the poverty of the poor Woman recommended the case to the Creditors to be favourable to her and did forbear to write the Interlocutor Hay of Knockondy contra Litlejohn Eodem die HAY of Knockondy pursues Litlejohn for the damnage sustained by him by the fall of Litlejohns House called the Tower of Babylon whereby the Pursuers House adjacent was broken down The Defender alleadged First The Libel was not relevant unless he had been required to find Caution de damno infecto as is required by the Civil Law whereby if that Caution were not required there is an express Text in the Title de damno infecto that there shall be no Action but the Party shall impute his loss to his own negligence Likeas we have two special Statutes concerning ruinous Houses which prescrive the method of preserving them and making up the damnage none of which being followed the Defender is not lyable 2ly Whatsoever might be alleadged against the Heretor of the said House the Defender is only an Appryzer of a Liferent-Right for a small Sum and the Liferenter was not obliged to repair a Tenement manifestly ruinous that could not be preserved but with great Expence and Rebuilding much less the Appryzer who hath but a small Sum on it The Pursuer answered to the first Defense that his Libel was most Relevant Damnage upon any fault being due and Reparable by the Law of Nature and as for the Civil Law it hath no Effect with us in this point our Custom neither giving nor requiring such Caution much less refusing Action if it be neglected and as to our own Statutes though they be very convenient wayes for securing of damnage yet they are not exclusive nor have they any Clause except in these Cases and in that method Damnage shall be irrecoverable To the 2d it was answered The Pursuer was not obliged to know or enquire whether the Defender was Heretor or not but he finding that he was a Neighbour behaving himself as Heretable Possessor by uplifting the Duties he did pursue him and if need beis offers him to prove that he did require him to keep him skaithless though he took no Instrument thereon The Defender answered that he was not obliged to take notice of such Requisitions not being Solemn by Instrument The Lords found the Defender lyable albeit there had been no Requisition verbal or otherwise it being proven that the Ruinousness of the Tenement that fell was notour and manifest to the Defender himself whereby he was obliged either to demolish the House if it was not Reparable or to have quite his Possession to evite the imminent damnage of Neighbours Lord Colvil contra Feuars of Culross Decemb. 15. 1666. THe Lord Colvil as Heretable Bailzie of Culross having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross conform to the stent Roll They Suspended and alleadged that the stent Roll contained a fifth part more then the Taxation It was answered and offered to be proven that it was the Custom of that and other Benefices at their meeting of making the Stent-roll to add a fifth part for Expenses and Charges of ingathering the Taxation The Defenders answered that if any such Custom were it was against Law and against the Liberty of the Subject who could be lyable for no payment but by Law or of their own consent or if any such Custome were it hath been by the consent of the Vassals or at least they have not questioned the same nor is there any ground for such an addition for the Kings Officers being obliged by their Office to Collect His Majesties Taxations they can demand nothing of them who payed without Process and if they be put to Process the Lords will modifie such Expences as they see cause The Charger answered That such immemorial Customes have the strength of Law and that it was done with the consent of all the Vassals who conveened and that it was the Suspenders fault that they conveened not to make the stent Roll which should not put them in better case then they had conveened or if they had conveened and disassented there is no reason that the dissassent of a few should be preferred to the consent of the most part who as they may Vot in the stent Roll for the Taxation it self in which the plurality carries so must they for the necessary Expences and all that can be alleadged with reason is that the Lords may modifie the Expences of a fifth part if it be too high The Suspenders answered that Law authorized the Feuars as a Court and Judicature to meet and stent which implyes a power to the Plurality but there is no such warrand for Expences as to which the consent of a hundred cannot oblige the dissassent of one or of one absent and the absents have loss enough that they have not a Vot in their own Stent The Lords sustained the Reason of the Suspension notwithstanding of the answer and found that no Expences nor any thing more than the Taxation could be stented to have effect against these who consented not but they would modifie Expences in case of Suspension as the Cause required but modified none in this case because a fifth part was Charged for more then was due Lord Newbeath contra Dumbar of Burgie Decemb. 18. 1666. THE Lord Newbeath having right from Iames Mcken who had appryzed the Lands of Burgie pursues Reduction and Improbation against young Burgie and Iohn Watson and insists on this Reason that any Rights they have are null and fraudulent being Contracted after his Debt and the Right granted to young Burgie is null as being but a base Infeftment not cled with Possession before the Pursuers publick Infeftment The Defender alleadged that his Infeftment was cled with Possession in so
far as his Fathers Liferent was reserved thereby and his Father Possessing by vertue of the Reservation did validat his Infeftment 2ly Albert the Fathers own Possession could not be sufficient yet the Father having Transmitted his Right to Watson and Watson Possessing the Suspicion of â—â—mulation ceased and there is a Disposition produced by the Father to Watson which though it bear to be of the Fee yet can import no more but to be of the Liferent seing the Father had no more neither needs it have an Infeftment seing it hath but the effect of an Assignation to a Liferent It was answered that if the Father had expresly assigned his Liferent reserved in the base Infeftment it might have been the ground of a question whether the Assigneys Possessing so would have validat the base Infeftment But since the Father has not taken notice of the Reservation but Dispones as Heretor it clears that he did not Possess by the Reservation but by his own prior Right The Lords found the Reason of Reduction and Reply Relevant and that the Fathers Possessing by himself or Watsons Possessing by himself could not validat the base Infeftment Charles Cass contra Mr. Iohn Wat. Eodem die DOctor Cass having taken Infeftment of an annualrent out of the Lands of Robertland in name of Cockpen and Adam Wat Charles Cass as Heir to the Doctor pursues Mr. Iohn Wat as Heir to his Father for Compt and Reckoning of the Mails and Duties and Charges him with the hail Rental being intrometted or ought to have been intrometted with by him and his Father by vertue of the Trust in their Person and also Adam Wat took a gift of Tutory to the Pursuer and so is lyable as his Tutor The Defender answered that his Fathers Name being borrowed on Trust could lay no Obligation on him to do any Diligence but what he thought fit seing by his Back-bond he was obliged to denude himself whenever the Doctor pleased and the Pursuer has reason to thank him for what he did and not burden him with what he omitted seing he had no allowance therefore and as for the Tutory there was a multiple Poinding all the time thereof depending among five or six Parties pretending Right by the dependence whereby the Tutor was excluded The Pursuer answered that the Defenders Name was not borrowed without his knowledge but that he accepted thereof and entred to Possession and as an Appryzer is not obliged to Possess but if he Possess must be answerable for the Rents of the Lands conform to the Rental so must the Defender The Lords found the Defender not lyable to Diligence by vertue of the Trust albeit he did Possess but Ordained him to Compt for his intromission and to condescend what Diligence his Father did as Tutor that if he be found deficient therein there might be an additional Accompt to what he intrometted with Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666. MR. Iames Cheap charges Mr. Iohn Philip to fulfil a Minute of Alienanation of the Lands of Ormestoun sold by Mr. Iames to Mr. Iohn whereby Mr. Iohn was obliged to pay 25500 merks as the price or to assign sufficient Bonds therefore He Suspends and offers to Consign Bonds and amongst the rest a Bond of 8000 merks due by the Town of Edinburgh The Charger alleadged that he was not obliged to accept that Bond because at the time of the agreement and Subscription of the Minut the Charger particularly excepted the Town of Edinburghs Debt and the Suspender declared that it should be no part of the price which he offered to prove by the Writer and Witnesses insert in the Minute The Suspender answered that Witnesses were not competent in this Case where the words of the Minute are not dubious but clear and general of any sufficient Debt for if this were sustained the alteration of the price as well as the manner of payment might be proven by Witnesses It was answered that it was no way alike nothing being here in question but the manner of payment and not the quantity of the price The Lords Ordained the Writer and Witnesses to be Examined before answer Ianet Thomson contra Stevinson Eodem die IN the Reduction on Minority at the Instance of Ianet Thomson contra Stevinson The Lords Ordained the Pursuers Mother to be received Witness of her Age cum nota there being a Testificat already produced and there being 30 or 40 years since the Pursuers Birth after which time it was not likely that others would remember but she was ordained to Deponâ— who were Witnesses at the Birth and Baptism and these to be Examined Corstorphin contra Martines Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister in lecto It was alleadged by Martines to whom the Disposition was made that he could not quarrel the same because his Father to whom he is Heir and the other Brethren and Sisters of the Defunct had approven whatsoever Testament Legacy or Disposition made or to be made by the Defunct of her Goods and Gear Debts and sums of Money and others whatsoever that she had or should have the time of her Decease so that she having made this Disposition he cannot quarrel the same The Pursuer answered First That the Ratification in the Terms foresaid could not be extended to Lands or Annualrents Constitute by Infeftment there being no mention of Lands Annualrents or Heretage therein 2ly It could not be extended to any Disposition but Legally made and therefore not to Dispositions on Death-bed The Defender answered that the Ratification bearing expresly sums of Money did comprehend all sums although Infeftment of Annualrent were granted for security thereof which being but accessory to the sum follows the same 2ly There could be no other effect of the Ratification if it were not to exclude the Heir from quarreling thereof as being in lecto for if the same was made by the Defunct in her leige poustie it were valide and unquarrelable in it self and albeit it bear not mention of Death-bed yet it expresses Disposition of all Goods she should happen to have the time of her Death so that if she had acquired Rights after her sickness contracted she might Dispone the same validly by this Ratification and yet behoved to be on Death-bed The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed which was carried but by one Vote and so they came not to the second Point William Yeoman contra Mr. Patrick Oliphant Eodem die WIlliam Yeoman having apprized the Lands of Iames Oliphant Son to Sir Iames Oliphant and Mr. Patrick Oliphant having also appryzed the same William insists on this reason that Mr. Patricks appryzing was satisfied by Intromission within the legal Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing because the two part thereof did only belong to his Debitor and the third
part to Dame Geils Moncrief who had right to a Terce thereof and to whom Mr. Patrick was only lyable and countable and for a part of the years he was her Tennent and had Right from her It was answered that the Tercer had no compleat Right till she was Served and kend to her Terce which being done after the years in question the Fiar might have Possest the whole till her Service and might have forced the Possessors to pay him so the Appryzer entring in Possession of the whole upon his Appryzing cannot pretend the Right of the Tercer and his taking Tack of her was unwarrantable till she was Served and done of purpose that his Appryzing might not be fully satisfied and so the Legal might expyre which is most rigorous and unjust and offered presently to satisfie the Tercer of her third It was answered that the Service whensoever done is drawn back to the Husbands death and doth but declare and not constitute the Wifes Right like the Service of an Heir The Lords found that Mr. Patrick could not cloath himself with the Tercers Right to cause the legal expyre but found the offer Relevant for besides the favour of the Cause the case is not alike with an appear and Heir whose Right though not declared yet he continues in his Predecessors Possession and none other hath any Interest but the Fiar might possess the whole and exclude the Tercer till she were Served Paul Henrison contra Laird Ludquharn Decemb. 22. 1666. PAul Henrison Indweller in the Island of Helgilland being at the mouth of the Elve fraughted to Scotland by Hamburgers was taken by a Privateer and declared Pryze at Peterhead by the Laird of Ludquharn Admiral Depute there whereupon he addrest himself to the Admiral Court at Leith and obtained Decreet for restoring of his Ship upon compearance Ludquharn gives in a Bill of Suspension of this Decreet and to dispatch the Stranger because it was ordained to be heard upon the Bill Ludquharn alleadged that the Admirals Decreet was unjust because he offered him to prove by Merchants in Edinburgh that Helligilland is a part of the Dominion of Denmark and albeit it be in the present Possession of the Duke of Holstein yet he holds it of the Crown of Denmark and as to that he is Subject to the King of Denmark and therefore the Inhabitants of that Island are in the state of enimity with the King and so lawful Pryze It was answered that the Stranger hath produced a Pass of Sir William Swan the Kings Agent at Hamburgh bearing that he had taken tryal and found the Ship to be free and it being notour and acknowledged that this Stranger is a Subject of the Duke of Holstein who is a Prince of the Empire and in Amity with His Majesty as is declared by a Letter of the King to the Lord Commissioner it must extend to all His present Subjects who are not oblieged to Dispute how he holds this Islands or when he got the Right thereof and his Pass bears him to be a Natural Subject of the Duke of Holsteins and not of the King of Denmark It was answered that the Right of this Island was only in Impignoration and only in Possession of the Duke of Holstein within this ten year The Lords adhered to the Admirals Decreet and Repelled the Reasons of the Bill Tweeddies contra Tweeddie Eodem die UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son at the same time his Son gives a Bond to his Mother and her Heirs of six thousand merks the Mother being dead the other five Bairns pursues a Declarator of Trust against the Heir that this was the Bairns Provision put in the Name of the Mother and offers to prove the same by the Wryter and Witnesses insert It was answered that Trust was not so probable otherwise all Rights might be inverted by Witnesses whose Testimonies our Law hath Restricted to an hundred Pounds It was answered that much more was to be attribute to Witnesses insert upon whose Testimonies the Parties condescend and confide than to common Witnesses 2dly Albeit Witnesses were not receiveable to prove Trust alone Yet where there are strong presumptions concurring they are admittable even to annul Writs of the greatest importance as is ordinarly used in the indirect manner of Improbations and here are strong presumptions viz. That the Father at the time of this Bond did Dispone to the Defender his Eldest Son his whole Estate without a Reservation of his own Liferent or any other thing and there were five Children beside who had no Provision So that albeit this Bond be conceived to the Wife her Heirs and Assigneys yet cannot be presumed to be intended to have fallen back to the Defender as her Heir The Lords in respect of the presumptions were inclinable to admit the Witnesses but they ordained the Pursuers before answer to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust. Iames Hoge in Edinburgh contra Iames Hoge in Dalkeith Ianuary 2. 1667. JAmes Hoge in Edinburgh pursues a Declarator of Redemption agaist Iames Hoge in Dalkeith who alleadged Absolvitor because the whole sum contained in the Reversion was not Consigned It was answered there was Consigned the equivalent viz. A Decreet against the Defender for a Liquide sum which behoved to compense It was answered that Reversions being strictissimi juris Compensations are not to be admitted therein otherwayes Wodsetters may be much prejudgeed by taking Assignations from their Creditors and Consigning the same and frustrating them of their Moneys which they had designed for other Creditors and other uses It was answered that this was no Extrinsick Compensation but a Decreet founded upon an Article contained in the Contract of Wodset Upon which consideration the Lords Sustained the Order and Declared Earl of Murray contra Iohn Hume Eodem die THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties or else to Remove Who alleadged Absolvitor because the Earl was Debitor to him in a Sum exceeding all the bygone Rents and this Action hath no place but when there are some years Rent Resting It was answered That the Defender was at the Horn and his Escheat taken and so was manifestly vergent ad inopiam The Lords would not Sustain this Member unless bygones had been owing but Superceeded to give answer till the Compensation were proven Francis Hamiltoun contra Eodem die FRancis Hamiltoun having Suspended a Decreet obtained against him for House-mails on this Reason that his Wife only took the Tack which could not oblige him It was answered that his Wife keeping a publick Tavern was evidently praeposita huic negotio Which the Lords Sustained Another Reason was that the House became insufficient in the Roof and the Defender before the Term required the Pursuer to Repair the same which he did not and the Neighbouring House called
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâ—amento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâ—io mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
before Declarator obtained as being rigorous and penal and so abiding the Lords Modification as well as Penalties in Bonds Modified of consent of Parties especially in this case where the performance is not of a single liquid sum but comprehends a general Clause of all Debts that were or should be after due The Defender answered that Clauses Irritant in Wodsets are not rejected by our Law but are valide only where Declarators are requisit The Lords may Reduce them to the just Interest of Parties before Declarator But here there needs no Declarator because the Defender is in Possession and may except upon the Clause Irritant committed and the Clause bears to be Effectual without Declarator and albeit this Clause could now be Reduced to the just Interest it is only this that seing Tullibardine hath sold the Land the Defender should give as great a price as it is sold for to Sir Iohn Drummond which the Defender is willing to do The Lords sustained the Order in so far as it is at the Instance of Tullibardine but not as to Sir John Drummond but prejudice to Sir John Drummonds Disposition They found also that this Clause Irritant might be purged now at the Bar or any time before Declarator which is always necessar though Renunced that medio tempore Parties may purge And the Lords inclined that Ochtertyre should have the Lands for the Price Sir John Drummond gave which is eighty eight thousand merks but upon Examining him and my Lord it appeared that my Lord had offered the Land to him re integra and that he had never been special as to so great a Price as this but only general that he would give as great a price as any other would give which they thought not sufficient seing any other thereby would be scarred from Bargaining Executors of Lady Pilton contra Hay of Balhousy Feb. 2. 1667. MR. Francis Hay granted a Bond to his Wifes Sister the Lady Piltoun bearing That for good Considerations he obliged him to pay her a 1000 merks yearly during her Life with this Provision that it should be Leisum to her to Employ the same for the Abuliaments and Ornaments of her Body or any other use she pleased and but any Right and Interest in her Husband thereto jure mariti her Executors do now pursue Balhousie as Heir for payment who alleadged-Absolvitor because he had payed to Piltoun her Husband and albeit it was provided that it might be leisum to his Wife to Dispose upon the sum yet she had not done it but the Husband had provided her with all Abuiliaments necessar It was answered that the Husbands jus mariti was excluded by Mr. Francis himself And whatever might be alleadged of what belongs to a Wife proprio jure that nothing more can remain with her but her necessary Aliment and all the rest being in the Person of the Wife doth return to the Husband jure mariti albeit the jus mariti were renunced in her favours yet the Right here is freely given by a third Party excluding the Husband which third Party might gift with what Provisions he pleas'd and his gift returns to himself unless these Provisions be observed and this must be thought to be a gift seing it bears no Cause onerous It was answered that it bears good Considerations and Expresses not to be a Gift or done for love and favour 2ly If the Gifter were opposing the Husband or his Creditors Right and making use of that Provision that his Gift might return seing the Provision was not keeped it might have weight but here the Donators Heir makes not use of the Provision but concurreth with the Husband and payeth him The Lords found the payment made by the Donator or his Heir to the Husband Relevant to exclude the Executors of the Wife Pourie contra Dykes Eodem die UMquhil Dykes having Subscrybed a Bond to Pourie of this Tenor That he acknowledged himself to be resting to Pourie 56 pounds yearly as the annualrent of a 1400 hundred merks which sum of 56 pounds he oblieged himself to pay yearly This was the Tenor of the Bond whereupon Pourie pursued Dykes his Successors not only for the payment of the annualrent but for payment of the principal sum of 1400 merks alleadging that she being but a simple Woman had entrusted Dykes with the drawing of the Bond and he had deceived her and not mentioned the payment of the principal but that the acknowledgement that the Annualrent was due as the Annualrent of 1400 merks behoved to infer that the 1400 merks was also due this Ticket being holograph without Witness there was no clearing of the meaning by the Witnesses insert Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses as she would use for clearing of the same She adduced an Instrument bearing Umquhil Dykes upon his Death-bed to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause and that it was through his neglect or unskilfulness all the Witnesses in the Instrument being now dead the Nottar and he who is mentioned as Procurator to have taken Instruments in the Pursuers Name were Examined both acknowledged that Dykes had exprest his mind in the matter before them but they were contrary in the particular the Nottar Deponed conform to the Instrument but the Procurator Deponed contrary that the woman had quite the principal sum and had taken her to the Annualrent The Lords having considered the whole matter And first Whether the Ticket could import that the principal sum was due They found neither by the Ticket nor by the Instrument that that could be Instructed They considered next Whether the Annualrent was due during the womans Lifetime only or as a perpetual Annualrent to her her Heirs or Assigneys The difficulty was that the Obligement bore that Dykes should pay the Annualrent yearly but did not express neither to her her Heirs nor Assigneys but simply in these Terms To pay the 56 pounds yearly Which the Lords found to carry a perpetual Annualrent though Heirs and Assigneys were not exprest Lady Traquair contra Marion Houatson Feb. 5. 1667. THe Lady Traquair pursues Marion Houatson for the Mails and Duties of a part of the Liferent-Lands who alleadged Absolvitor because her umquhil Husband who was immediat Tennent to the umquhil Earl had bona fide made payment to him Likeas the Defender being only Sub-tennent to her Son had bona fide made payment to her Son of her Duty The Pursuer answered that neither of the Alleadgances were Relevant because any payment that was made by the Defender or her umquhil Husband was before the Term of payment and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides neither could it prejudge the Pursuer The Lords were all clear that the payment made by the principal Tacks-man before the Term was not Relevant but as to the payment made by the
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they â—epelled the defence and Decerned the Superiour to receive the Pursuer salvo jure â—ujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâ—tertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of â—ebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâ—her But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord â—tormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâ—d both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâ—our declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâ—ripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ â—ut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâ—ar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ— which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the approbation
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
answered that Inhibitions are personal Prohibitions Restraining the Person Inhibit and the Leiges to Alienat Buy or Sell any Lands in prejudice of the User of the Inhibition and until he be satisfied of the Ground thereof Which Prohibition respecteth the Person Inhibit directly and the Lands but indirectly as they belong to him so that there is no difference whether they belonged to him before or after for hoc ipso that they are his they fall under the restraint and the alienation thereof is to the prejudice of the User of the Inhibition because if they were not Sold they might Appryze the same so that albeit he be not in worse case then he was the time of the Inhibition yet he is in worse case then he would be if the Land had not been sold And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom that infers not but they might and that they would be effectual to Lands thereafter acquired in these shires neither is there any ground to except the Renuncing of Wodsets which are Alienations of the Wodset Lands but the Redeemer before he declare or deliver the Money and take Renunciation he ought to search the Registers and to call these persons who have used Inhibitions for their Interests The Lords found that Inhibitions reached to Lands acquired after the Inhibition but were not clear that Inhibition hindred Renunciations of Wodsets but superceeded to give answer to that Point till the first of June Laird of Dury contra Anna Gibson Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters for twenty thousand Merks of portion a Piece and in case of Decease of any of them her Portion to belong to his Heir-male but upon the Margent there is added that the Portion of the Deceasing should accresce to the Survivers This Dury Brother and Heir-male pursues Reduction and Improbation of this Bond in so far as concerns the Marginal addition upon these grounds that the samine was not Subscribed before the Witnesses insert in the Bond nor insert at that time And that it is written by another Hand then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond and that the Bond bears that the Date and Witnesses are insert by Dury himself yet it does not bear that he insert the Marginal addition which is of greater importance It was answered that Bonds being Subscribed before Witnessâ—s their Testimony reaches not only to the Subscription on the foot but to the Subscription of joyning the Sheets and whole Marginal additions which are as valide as any part of the body unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed and albeit the Marginal addition be of another Hand it is offered to be proven that it is the Hand-writing of Dury himself who insert the Date and Witnesses which is more Solemn then any other writer especially seing the writer was not present or witness but only drew the draught of the Bond and albeit he mentions not the inserting of the Marginal addition but only the inserting of Date and VVitnesses that has been because of the ordinar Stile of Bonds whereof the Date and VVitnesses are filled in by another Hand not being ordinar for these to write Marginal additions and as for the importance or contrariety of the Margent to the Body that is most ordinar especially where the body is but a draught drawen by another Hand who has erred in his intention in the Substitution it was answered for the Pursuer that albeit the Marginal addition should be proven to be Holograph yet unless it were proven to have been truely written and subscribed at the Date of the Bond. It cannot prove that it is of the same Date or of any Date before the Defunct was on Death-bed and so it is null and cannot prejudge the Pursuer as Heir especially seing the Defunct having then no Sons might probably adject this in favours of his Daughters contrair his former Intention which if it should take effect would ruine the Heir-male The Lords having taken the Deposition of the Witnesses insert and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no and that it did appear by inspection that the Marginal addition was by another Hand then that that wrote the body and that it was not mentioned at the conclusion where the Defunct exprest that he himself was Filler up of the Date and Witnesses and nothing was adduced to astruct that it was of a true Date before his taking Bed Vpon all these considerations joyntly the Lords found that the Marginal addition was not of the Date of the Bond and that having no Date of it self it was not instructed to have been done before the Defunct was on Death-bed and so was null as to the Heir but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition but only that all joyntly was sufficient the matter being also accorded amongst the Parties Antrobus contra William Anderson Provost of Glasgow Iune 13. 1667. WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow the Messenger having therewith taken Herbertson in his own House and having required William Anderson present Provost to Concur and put him in Prison and he refusing pursues now the Provost for payment of the Debt The Defender alleadged first that the Lybel was not relevant because it did not subsume that the Rebel was showen to the Defender 2ly The Defender was required at an unlawful time being betwixt eleven and twelve at night 3ly The Defender offered the concourse of the Town Officers 4ly The Army being come to Glasgow that night the Provost was taken up at the time he was required with the ordering of their Quarters which being a publick Service of greater Importance he offering of the Officers was sufficient 5ly This subsidiary Action being but for the Pursuers damnage he can pretend none because the Rebel was Bankrupt and insolvent long before and he was Incarcerat within some few dayes where he remained a long time during which the Pursuer might have Arrested him and the Defender yet offers to put him in Prison in as good case as he then was The Pursuer answered that his Lybel was most Relevant because the Letters being directed to Provost and Bailies of Burghs and if they be required albeit the Rebel be not in their sight they must go with the User thereof to any place within their Jurisdiction which they must do in their own persons and it will not be sufficient to send their Officers and as to the time of requiring any time that men do use to go about their Affairs is sufficient and the Defender was required between
so in Rights Moveable and this Bond is moveable being after the Act of Parliament 1641. which was so found in a Practique produced observed by Dury where the Wife by her Contract of Marriage Disponing her Goods and Debts to her Husband her self and their Heirs the same was found to divide betwixt the Husbands and the Wifes Heirs It was answered that here the Bond bore Annualrent and so was Heretable quod fiscum relictam and there being nothing to evidence that the sum was the Wifes own Means the same is presumed to be the Husbands and the taking of a Bond of this Tenor if it did import to give her the half is a Donation by a Husband to his Wife Revockable and now Revocked The Lords found that the Wifes Heirs had no interest in the Sum. Iohn Watson contra Feuers of Dunkennan Iune 21. 1667. JOhn Watson being Superiour of a number of Tenements and Roads about the Town of Kirkaldie pursues a Declarator against the Vailals to hear and see it found and declared that he might Rive and Plough the Muire of Dunkennan leaving as much of the Muire as would be sufficient and convenient for the use of the Vassalsâ— their Roads and Tenements for Fail and Devot Clay and Stone to the use foresaid It was alleadged for the Feuars that they had raised a Declarator of the Right of their Servitude through the bounds of the Muire which they repeated by way of Defense and alleadged that wherever a Servitude was Constitute it affected the praedium serviens wholly and every part thereof capable of the Servitude and could not be restricted without the consent of the Parties having Right of the Servitude as if any person had Right of Pasturage albeit limited to so many Goods or to the Goods of such Land which is the praedium dominans beyond which it could not be reached a Declarator of this Nature would never be sustained to astrict him to a portion of the Muire that would be sufficient for the Goods of that Town or of that number or if he were Infeft with the liberty of Feuel though there were two Mâ—â—sses that could not be exhausted within the bounds he could not be restricted to the one so here the Vassals being Infeft with the priviledge of Fail in this Muire they may take it out of any place of the Muire they please and can be restricted to no particular place It was answered that this Servitude being limited to the use of the Roads and Houses could not be thought to be so Constitute as to make useless the whole Property of the Muire the Pasturage whereof is worth nothing and the only use is Lyming and Labouring that it was hurtful to the common utility and improvement of Land so to extend such a Servitude and that if there were a Servitude of a way through the Constituents Ground it would not import a Liberty to make as many ways as could be made through the Ground or to change the way at the Dominants pleasure It was answered that the nature of the Servitude of a way or passage is ordinarly limited by Bounds and is always understood to be one way as is most convenient for the Dominant which having chosen he cannot thereafter change but it is not so in the Servitudes of Feuel Fail or Devot neither can the consideration of publick Utility or that the Defenders have no detriment warrand the Lords to take from him his Right or to limit it without his Consent which were only proper for a Parliament having not only the Judicative but also the Legislative Authority and the Rights and Securities of Parties should not be lyable to conjecture or arbitriment upon the supposition of conveniency but should be fully enjoyed according to Law The Lords found that this Servitude might be astricted to a part of the Muire which might be beyond all question sufficient for the use and with this quality in case it failzied they might return to that which was Laboured which behoved to be lâ—ft lye as far as would be sufficient Hay of Strowy contra Feuers Iune 22. 1667. HAy of Strowy being Infeft in the Miln of Strowy and having lately built a Walk-miln and made a new Dam-head therefore over that Burn which is the March betwixt him and the Feuers thereupon the Feuers demolished the Miln and the Dam. He now pursues the Feuers to hear and see it found and declared that he has Right to enjoy the Walk-miln and Dam and that they did wrong at their own haâ—d to demolish the same It was alleadged for the Feuers and the Laird or Ketr their Superiour Absolvitor because the building of this Miln being novum â—pus they might lawfully stop the same and might demolish the Dam the end thereof being fixed upon their Ground without their consent The Pursuer answered First Albeit the Defenders might have impeded while the work was doing yet theyâ— could not after the Walk-miln was a going Miln demolish the Miln or Dam thereof via facti albeit they might have used civil Interruption and stopped it via jurâ— because its a known and common custom that a going Miln cannot be stopt summarly being an Instrument of Service for common good 2ly The Defenders could have no detriment by putting over the Dam because it was a Precipice at their side to which the Dam was joâ—â—nâ—d so that they had no detriment either as to the Inundation of their Ground or Watering The Defenders answered that cui libet licet uti reâ—uâ ad libitum and they were not obliged to Dispute whether they had Damnage or not but might cast down the Dam built on their Ground unlesse their consent had been obtained and that there is no Law nor Decision for such a priviledge of Milns neither was it ever extended to Walk-milns The Lords found the Defenders might hinder the Building of a Damâ— upon their Ground without necessity to alleadge detriment but they found if the Walk-miln was a going Miln fourty eight hoursâ— that the Defenders could not brevi manu without the Authority of a Iudge demolish the Dam or Miln Mr. David Deuar contra Paterson Iune 26. 1667. MR. David Deuar pursues a Transferrence of a Compt and Reckoning which formerly was depending betwixt him and umquhil Henry Paterson and craves it may be Transferred against Henry the Heir and proceed where it left It was alleadged for the Defender absolvitor because the Citation was given before year and day after the Defuncts death contrary to the Defenders priviledge of his annus deliberaâ—di by which he hath inducias legales and cannot be forced to own or repudiat the Heretage The Pursuer answered First That annus deliberandi is only competent where the appearand Heir is Charged to enter Heir and so must either Enter or Renunceâ— and so has no place in Reductions or Actions Declaratory or real Actions which may proceed against the appearand Heir without a Charge The Defender answered that albeit
the annus deliberandi be most ordinary in such Cases yet it is not limited thereto but must take place also in all Cases where the reason of the Law holds viz. where the Defender must be either absent and suffer Sentence or if he compear must found himself upon the Defuncts Right and so behave himself as Heir as in this case the Defender cannot alleadge Articles of Deduction or Discharge but upon the Defuncts Right for finding out of which Right the Law giveth him a year to inquire and use Exhibitions ad deliberandum ne incidat in damnosam haereditatem and therefore during that year he cannot be prest contestare litem The Lords sustained the Defense It was further alleadged by the Pursuer that now the annus deliberandi was past It was Duplyed for the Defender that albeit it was now past the Citation was used within the year so that that Citation cannot be sustained The Lords refused to sustain the Citation and found no Process till a new Citation but here the day of compearance filled in the Sâ—mmons was also within the year which if it had been after the year us like the Summons would have been sustained especially seing the Decision of this case extending the year of Deliberation to Declaratorie Actions in Custom had not occurred nor been decided Minister of Dalrymple contra Earl of Cassils Iune 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend he Suspends on this Reason that he offered payment of the Bolls in the Ministers Decreet conform to Linlithgow Measure which was the common Measure of Scotland by the Act of Parliament and is by Act of Parliament the measure of Ministers Stipends It was answered that the Ministers Decreet of Locality was indefinit and mentioned no measure the meaning thereof was sufficiently cleared because it was offered to be proven by the Earls Oath that he payed ever since the Decreet of Locality being 15 years conform to the measure of Air and that he knew it was the common Custom of that Countrey to pay all Ministers with that measure The Suspender answered that his use of payment either by mistake or benevolence of more then what he was due could not oblige him to the future especially where the Minister did not found upon his decennalis triennalis possessio but upon a Decreet of Locality wherein though the measure be indefinit it cannot be understood to be any other measure then the common measure of Scotland seeing the Act of Parliament anent Ministers Provisions bears expresly that they shall have eight Chalders of Victual Linlithgow measure The Lords having considered the Decreet of Locality and that it did not extend to eight Chalders of Victual but to three Chalders of Victual and 400 pounds which is the rate of four Chalders of Victual at 100 pounds the Chalder as is ordinarly Rated by the Commission in that place of the Countrey they found the use of payment and common Custom of the Countrey sufficient to declare it to be the measure of Air seing by that measure it would not come up to eight Chalders of Victual Mr. Iames Dowglas contra William Leisk Iune 28. 1667. MR. Iames Dowglas as Donatar to the Liferent Escheat of William Leisk pursues a special Declarator against the Tennents for Mails and Duties It was alleadged for William Leisk that the Lands in question were Appryzed from William Leisk the Rebel and the Superiour granter of this Gift Charged to Infeft the Appryzer long before the Rebellion to which appryzing William Leisk has Right during his Life so that the Charge being equivalent to an Infeftment as to the time and to the anteriority of the Infeftment and by drawing it back to the Charge doth prefer the Appryzer from the time of the Charge It was alleadged for the Donatar that albeit a Charge against the Superiour be equivalent to an Infeftment in some cases Yet in other things it is not equivalent as it is not a Right sufficient for the Appryzer to Remove Tennents and therefore the Vassal is not denuded thereby otherwise the Superiour could have no Casuality after such a Charge because the Appryzer not being Infeft his Liferent could not fall It was answered for the Defender that albeit this consequence should follow it is the Superiours own fault that did not receive the Appryzer It was answered non constat it was his fault for he might have just reason to Suspend and albeit it were his fault the Law hath not determined this to be his Penalty to lose his Casualities The Lords Repelled the Defense and found the charge on the Appryzing did not denude the former Vassal but his Liferent fell and affected the Ground Sir Alexander Hume contra Creditors of Kello Eodem die SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands before the Forefaulture but the Inquest served Negativeâ— and now he pursues a Reduction of the Retour on this Reason that it is contrary the Testimonies of the Witnesses adduced It was alleadged no Process because the Reduction of Retours is only competent by a Summons of Error in Latin under the quarter Seal It was answered that is only in the Case where the Assizers are insisted against for their Error and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method The Lords sustained the Defense and refused Process albeit it was known to them that the Custom has been contrary of a long time before Sir Iohn St. clair contra Iohn Cowper Iuly 2. 1667. UMquhil Mr. Iohn Rae having two sisters and Heirs portioners the one married to Robert St clair and the other to umquhil Alexander Cowper the said Alexander and his Spouse as Heir portioner assigns to Robert St. clair a number of her Brothers Bands And likewise as Heir assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms and in time coming Sir Iohn St. clair having appryzed Robert St. clairs Right pursues Iohn Cowper as Representing his Father to hear it declared that this perpetual assignation to the Mails and Duties did import an absolute Disposition of the Lands and did carry in consequence an obligment and all things to make the Disposition effectual and so to renew it into a legal Form containing a Procuratory and Precept The Defender alleadged absolvitor because his Father had granted no Disposition but only an Assignation and so the Defender could be obliged to do no further The Pursuer answered that this assignation behoved to be understood cum effectu and to be done to denude the Granter and to settle the Right of the Duties in the Purchaser and therefore whosoever gives the Right gives all necessaries in his power to accomplish it and the Informality of a Clerk ought not to Evacuat the Pursuers Right The
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
bare no Annualrent The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums for which they allowed him a year and that he was lyable for Annualrent after that year 2ly How soon a Tutor was obliged to do Diligence to uplift his Pupils Means so that if the Debitor became Irresponsable the Tutor was lyable The Lords found that if the Pupils Sums were in the hands of Debitors unquestionably Solvendo the Tutor was not obliged to lift the same unlesse the condition of some of the Debitors or Cautioners became worse at which time he was obliged to do all Diligence for uplifting the sums unlesse the Debitors became to be known to be altogether broken upon a sudden which he could not foresee 3ly VVhat Diligence a Tutor was obliged to do whether Horning was sufficient or if Captionâ— Poynding and Appryzing were necessary The Lords found that in different Cases different Executions were requisite viz. If the Debitor were known to have Lands appryzable or Goods poyndable or Sums arrestable that the Tutor was obliged to do Diligence accordingly and if not to use personal Execution 4ly Whether the Tutor should have allowance of such Sums as he payed without Sentence The Lords found such sums allowable unless a competent Defense could now be proponed which was known and probable to the Tutor at the time of payment Iohn Watson contra Iames Law Iuly 12. 1667. JAmes Law having Disponed certain Lands to Iohn Watson with absolute warrandice and after the Disposition there being a Designation of a part of the Land for Horse and Kines Grasse to the Minister conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse The Defender alleadged absolvitor because the distresse is by a subsequent Law falling after the Disposition It was answered first That absolute Warrandice does even take place in the case of a subsequent Law at least in so far as the Pursuer suffers detriment because if the Lands had continued the Defenders had been so burdened and therefore is lyable in quantum lucratus est 2ldy This is no supervenient Law because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof concerning Manses and Gleibs is declared to be valid as if it had been made in the year 1649. It was answered to the first that nothing can infer Eviction or Recourse but that which had a Cause anterior to the Warrandice unlesse it had been otherwise exprest Nor is it any ground that if the Disponer remained Heretor he had been lyable otherwise all other supervenient Burdens would Return not only upon the Immediat but upon all the Disponers but all such accidental Superveniencies are upon the Purchasers hazard as well as the Advantages are to his benefit To the second the time of this Disposition the Parliament 1649 was Rescinded and the new Act was not Enacted Neither by the new Act is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse but only as to the Manse It was answered that was but a mistake of the Draught of the Act of Parliament there being no Reason wherefore it should be drawn back as to Manses more then to the rest but it was the meaning of the Act of Parliament to Revive the former Act in all points It was answered that the meaning of Acts of Parliament may not be extended contrair to the words neither can any thing be supplyed that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly as to Manses which is adjected as a limitation could not be extended to the Ministers Grass which is statute in a different way in this then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money and in the former Lands were only to be designed therefore found the Distress that being by a supervenient Law that the Warrandice did not reach thereto Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667. SIr William Scot of Clerkingtoun having granted Assignation to his Daughter Margaret Scot of a Sum due by Wauchtoun Pursues Sir Laurence his Son as Haver to deliver the same It was alleadged for the Defender that there was a Clause in the Assignation reserving a power to Sir William to alter and Dispone during his Life and that he did Assign this Bond to Iohn Scot. It was answered that he took a Back-bond from Iohn Scot bearing that the Assignation was granted in Trust to this effect only that Iohn Scot should do diligence thereupon It was answered that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot his Heirs and Assigneys whereby the Assignation is altered The Pursuer answered that there appears nothing of the alteration of the Defuncts mind more then if he had appryzed in his own name whereby the Bond would have been adjudged to him his Heirs and Assigneys which is no more then if an Assigney should use the name of the Cedent which would no ways infer that by adjudging Land to the Cedent and his Heirs they pass from the Assignation The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond which also bare the Right to John Scot was made to do Diligence and for no other end Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith Iuly 16. 1667. THis Cause at the Instance of Mr. Iohn Eleis against Keiths being Dispute the twenty seventh of February last The Lords found Inhibitions to reach Lands Acquired after the Inhibition but superceeded to give answer to that Point whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands which being now Debated It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt and accept of a Renunciation from the Person Inhibit because a Renunciation is but a Discharge and Inhibitions were never found to take away Discharges of Heretable Bonds nor to hinder any Party to pay their Debt but on the contrair It was an universal Custom over all the Kingdom that Debtors should pay their Debts and did accept Discharges and Renunciations without looking into the Registers which hath been most frequent not only in Wodsets but mainly in Infeftments of Annualrent upon Heretable Bonds which no man ever doubted to pay till he searched the Registers of Inhibitions et communis consuetudo pro lege habetur It was answered first That the Inhibition bears expresly a Prohibition to grant Renunciations but no Prohibition to grant Discharges and as to the Custom it cannot be showen that persons did pay Wodsets and take Renunciations from these that were Inhibit much lesse that the Lords by their Decisions did approve
the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâ—s by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâ—ed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâ—io jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
payment the Term of payment of the price was Candlemas 1646. Whereupon Dirletouns Executors pursues the Subscribers of the Bond who alleadged that this Bond was clearly Conditional that the Victual should be Delivered betwixt and such a Time which though it be blank yet must be understood to be before Candlemas which was before the Term of payment of the pryce and upon obtaining Iames Riddels Receipt thereof Ita est there is nothing to instruct the Delivery to Iames Riddel or the obtaining his Receipt Debito tempore It was answered that the Condition bears Delivery to Iames Riddel or his Deputes which Terms signifies only persons under him in Office and therefore it must relate to James Riddel as he was then a publick person one of the Commissars of the Army under Humby Ita est there is produced Humbies Discharge and Receipt of the Victual which is better then Riddels who was his Depute and there is also a Declaration by Riddel that the Victual was truely Delivered It was answered for the Defenders that their Obligation being Conditional must be performed in forma specifica so that it being in Dirletouns option to Deliver or nâ—t if he Delivered on other Terms then the Bond bears it was on his own peril neither is there anything to show that this Victual was destinat for pulick use and albeit it had been the purpose of the Defenders so to have employed the Victual yet they might choise their own way of putting it in the hands of a Person whom they did Trust who without their Warrand could have given it out to none and whose trust they only followed thus qualified that a Receipt were then obtained from him so that they are not obliged to trust Humbies Receipt nor can that prove against them for his Oath much less his acknowledgment could not bind upon them his Debt neither is Humbies Receipt Debito tempore and likewise Humbies Receipt relates not to this Bond but bears to be conform to a Contract betwixt Dirletoun and the Committee of Estates neither can Riddels Declaration ex post facto prove against the Defenders or burden them because they have qualified Riddels Trust not to his Write at any time yea not to his Oath but to his Receipt within the time limited and there is no reason to enforce the Defenders Contract to the Tenor of their Bond to trust the Declaration of Iames Riddel Emitted at any time for his Condition mighht change both as to his Estate and to his Trustinesse and they were not obliged though they were to Trust his Receipt within such a time therefore to trust his Declaration for ever and albeit the Victual had been appointed for publick use yet the Delivery and Receipt should have been made forthcoming to the Defenders that they might have obtained Releif of the publick but never having been delivered to this day the Defenders cannot be burdened therewith It was answered that Dirletoun was known to be an Illiterat Person and albeit he takes Humbiâ—es Discharge relative to a Contract of the Committee of Estates yet this same Bond is understood for the name of Contract may well comprehend a Bond and the Subscrivers of this Bond albeit they be not so Designed in the Bond yet all of them were Members of the Committee of Estates and a Quorum thereof and the quantity of Victual was the same and the Date of that Contract is the day of August 1645. which showes it was not then present and this Bond is in August 1645. and it cannot be imagined that Dirletoun would have engaged in the same Moneth for 6000. Bolls of Victual twice and as to the time of the Receipt and Declaration there is no Clause irritant upon nor obtaining it at such a time and that is no Detriment to the Defenders neither can it be presumed that they would have obtained Releif seing they attained no Releif of many publick Bonds they were ingaged into at that same time The Lords found the Defense founded upon the Conditional Clause relevant and the Condition was not fulfilled chiefly upon this consideration that Iames Riddels Receipts were not obtained in the time limited after which the Defenders were not obliged to trust any Declaration of Riddels or Humbies Iohn Ker contra Iean Ker Eodem die Iohn Ker being Executor dative ad omissa et male appreciata pursues Iean Ker as principal Executrix for payment and referred the particulars to her Oath she alleadged that she had made Faith at the time of the Confirmation that nothing was Omitted or wrong Prized she could not be obliged to Depone again It was answered that this was the ordinar Custome and was no more then a Re-examination and that it would not infer Perjury though it were different because if she had any thing Omitted that had come to her Possession and Knowledge after the Inventar or if she had then possest it but did not know or remember that it was in her Possession or in bonis defuncti and ordinarly the Prices are made be the Commissar and but upon Conjecture and may by much better known thereafter The Lords Repelled the Defense and ordained the Executrix to Depone Mr. Iames Daes contra Kyle July 10. 1667. MAster James Daes being Infeft by the Earl of Hadingtoun in certain Husband Lands and Aikers in Earlstoun with a general Clause of all Lands within such bounds pursues Robert Kyle to remove from certain Aikers within that bounds who alleadged Absolvitor because he has Tacks standing from the Earl of Hadingtoun of all the Lands possest by him and produces the Tack bearing the Earl to have Set him fourteen Aikers of Land presently possest by himself and declares he has no other then what he possest before the Tack and during the time of the Tack now by the space of thirty years The Pursuer answered that his Tack gave him only Right to fourteen Aikers so that the Pursuer by the general Clause must have all the rest It was answered that the Defender was not obliged now to Dispute the extent or quantity of his Aikers nor to restrict to the present extent of Aikers especially seing that which he did possess the time of the Tack was Set to him by his Tack simply without Reservation and albeit designed fourteen Aikers and were more it is nothing for an Erronious Designation vitiats not unless it did appear to be Restrictive or Taxative likeas the Pursuers Aikers in his Infeftment will be as large proportionally as the Defenders The Pursuer answered that whatever the extent of his Aikers were the general Clause gave him all that was not reserved to the Defender and he offered him to prove that there were six aikers beside the fourteen aikers severally kend and known and possest by different Possessors before this Tack The Defender answered that he opponed his Tack bearing the Lands to be then in his own Possession at the granting of the Tack and he having possest thirty years
declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ— Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not at
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
sisti but also judicatum solvi that he may be ordained to do the same before the Lords Which the Lords refused but granted the Advocation in common form Sir Robert Montgomery contra Alexander Rankein November 23. 1667. SIr Robert Montgomery having obtained Decreet against Antonia Brown as representing Sir Iohn Brown her Father for two thousand Merks Arrests the price of a chain due to Antonia in the hands of the Lord Melvil and pursues to make forthcoming Compears Alexander Rankein and produces a Decreet obtained against Antonia and thereupon an Arrestment by the Sheriff of Fifes Precept and a Decreet of the Sheriff thereupon in July last the Arrestment being in the same Moneth and craves preference because he had the first compleat Diligence It was answered that Sir Robert having first Arrested in March last and first intented Processe thereupon before the Lords and having insisted therein the last Session was kept off by the compearance of the Lady Cullerny who also pretended Right to the Chain and has failed in no Diligence and therefore ought to be preferred to a posterior Arrestment albeit it have the first Decreet of an inferiour Court both Arrestment and Citation being after his for he having affected the Sum by an Arrestment the matter became litigious and no posterior Diligence nor Sentence of an inferiour Court could exclude him he using all Diligence before the Supream Court and not living within the Sheriffs Jurisdiction and the Sheriffs Decreet being only in absence otherwise no Process upon any Arrestment before the Lords can be secure but others may anticipat them by obtaining Decreets before inferiour Courts which are far sooner obtained It was answered that it was not the Arrestment but the Sentence to make forthcoming that transmitted the Right as being a Judicial Assignation and therefore the first Decreet is preferable for as Poinding might have been used upon the Sheriffs Precept notwithstanding of a prior Arrestment and Dependance before the Lords so must the Sheriffs Decreet which is equivalent have the same effect and Sir Robert ought to impute it to himself that took not the shortest way in pursuing before the Sheriff The Lords found the first Arrestment pursued before themselves sine mora and the first Citation preferable to a posterior Citation and Arrestment though obtaining the first Decreet and therefore preferred Sir Robert Montgomery and would not bring in the Parties pari passu the first Arrestment and Citation being several Moneths before the other Lord Iustice Clerk contra the Laird of Lambertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods and Planting in the beginning of the Troubles the Parties did agree that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde the one half thereof should be payed by Lambertoun The Lords granted Commission to five of their Number who Examined Witnesses upon the place three of the Pursuers Witnesses proved the half of the Damnage to be eleven thousand Merks and gave clear Reasons of their knowledge two of them were used by the Defender also and two or three of the Defenders other Witnesses Deponed that the whole Damnage was about two thousand Merks and a third ex auditu agreed in some points At the Advising of the Cause the question arose whether the Lords might modifie betwixt the two Extreams or if they ought to Judge according to any two of the highest Testimonies or according to the most pregnant Testimonies giving the clearest ground of their Knowledge The Lords found the most pregnant Testimonies to be the Rule and Decerned according to the least that the Pursuers Witnesses did prove as being that wherein all did agree and not according to the most quantities that some proved Mr. Iohn Hay of Haystoun contra Mr. Iohn Drummond and Patrick Hepburn November 26. 1667. MAster Iohn Hay having pursued a Reduction of the Rights of some Lands against Mr. Iohn Drummond and called for the Rights made to him by Umquhil Patrick Hepburn Mr. Iohn Drummond got three Terms to produce reserving his Defenses and at the last Term alleadged no Certification against the Rights granted by Patrick Hepburn because none to Represent Patrick Hepburn were called a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn whereupon he Cited Patrick Hepburn his eldest Son and appearand Heir who having gotten one very short Term and that circumduced against him It was now alleadged that all the Terms ought to be granted to Patrick Hepburn seing he was a Party necessar to be called and his Rights were to be Reduced The Pursuer answered that this being a single Reduction de jure there was no more due but one Term. 2dly Albeit more were due yet Mr. Iohn Drummond having run three Terms already he can crave no more but one upon the account of Patrick Hepburn his Author The Lords in respect the Term Assigned to Patrick Hepburn was but on six dayes allowed him a second Term and ordained it to be Intimat by the Ordinar to the Advocats that in single Reductions of Rights of Lands they would grant two Terms for production and in Reductions and Improbations three only Captain Bood contra George Strachan November 28. 1667. CAptain Bood Captain of one of His Majesties Friggats pursues George Strachan who had Commanded that Friggat for a time and was sent a Voyage therewith from Brassie-found to London to restore a part of the Out-reick of the Ship which he had not Delivered but had excepted in his Discharge as being worn stollen or lost and now it was offered to be proven that he Sold and Disponed upon the same particulars he so reserved The Defender alleadged Absolvitor from such particulars as he condescended upon because he did waire out a considerable Sum of Money fot Repairing the Out-rige and necessars to the Ship during the Voyage for which in case of necessity he might have Sold a part of the Out-rige 2dly Albeit he might not have Sold the same yet he may retain or compence the price thereof with what he waired out necessarly and profitably for the Out-rige of the Ship 3dly He offered him to prove that such parts of the Out-rige in questionâ— as he should condescend upon were worne and stollen which being his Defense he ought to be preferred in the Probation unto the Pursuer who ought to have no other Probation against him being a Person Intrusted but his own Oath much less a contrair probation by Witnesses that they were not Lost but Disposed upon by the Defender The Lords Repelled the first and second Defenses and found that albeit the Captain might have Hypothecat his Ship or Out-rige for the necessar Expences waired upon her yet that he could not Sell the same and that de facto he did not Sell the same because the Pursuer offered to prove he Sold them at Lieth after his Return and found the same probable by Witnesses
Decreet of Locality because after the said Decreet a part of the Paroch of Gordoun was dismembred and Erected in a new Paroch and the Earl of Home burdened with a new Stipend and the Minister of Gordoun Liberat of a great part of his Charge in consideration whereof the Minister then incumbent quite a Chalder of his Decreet of Locality and aquiesced in the rest without ever Demanding any more and so did his Successors now by the space of sixteen or twenty years The Charger answered that his Predecessors forbearance to Lift that Chalder cannot instruct his Consent and though he had expresly Consented he could not prejudge his Successor unless that Chalder had been applyed to the new Kirk by Sentence of a Judge The Lords found the foresaid Reason relevant against the Pursuer in possessorioâ— ay and while he declare his Right here it was represented that the Minister had a sufficient Stipend beside the Chalder in question Mr. Rodger Hog contra the Countess of Home December 11. 1667. MAster Rodger Hog Insisting in his Reduction mentioned yesterday upon his Inhibition the Countess of Home alleadged that she had Right from Appryzers who would exclude the Pursuers Right and Inhibition and would Defend her self thereupon and not suffer her Right to be Reduced ex capite Inhibitionis and might thereby exclude the Pursuer from any Interest It was answered that the Reduction being only upon an Inhibition there are no Rights called for but Rights posterior thereto and it cannot prejudge any prior Right which the Pursuer is content shall be reserved Yet the Lords Admitted the Defender to Defend upon any prior Right that might exclude the Pursuers Right Hunter contra Wilsons December 13. 1667. HVnter having Charged Wiâ—sons for payment of 500 Merks contained in their Bond they Suspended on this Reason the Bonds bears expresly that the same should not be payed till the Suspender be put in Possession of a Tenement of Land in Glasgow for a part of the price whereof the Bond was granted Ita est they neither were nor can be put in Possession because the House was burnt in the Conflagration in Glasgow It was answered non relevat because after perfecting the vendition peculium est emptoris and therefore this being an accidental Fire wherein the Seller was no wayes in culpa nor in mora in respect that at that time there was a Liferenter living whose Liferent was reserved in the Disposition It was answered that albeit in some cases the peril be the Buyers yet where there is an expresse obligement that no payment shall be until Possession by that expresse Paction payment cannot be sought It was answered that the Buyers had taken Possession after the burning and had built the House It was answered that the Possession of the Ground cannot be said the Possession of the House Terra non est Domus and therefore this being but a small part of the price in such a calamitous Case the Suspenders ought to be Liberat thereof Notwithstanding of all these Alleadgeances the Lords found the Letters orderly proceeded here the Buyer was Infeft before the burning and did voluntarly take Possession after the burning Robert Hamiltoun Clerk contra Lord Balhaven December 14. 1667. THe Lord Balhaven having Disponed the Barony of Beill to Iohn Hamiltoun Son to Robert Hamiltoun Clerk reserving Roberts Liferent with power to dispose of fouâ—ty Chalders of Victual at his pleasure and to set Tacks for what time and Duty he pleases and containing an express Provision that it shall be leisum to Robert to do any Deed in Favour of my Lord Balhaven and that the Fee shall be burdened therewith and it is Provided that all Rights Robert shall Acquire shall accresce to his Son who is to Marry Balhavens Oye and failzying of the Sons Heirs mentioned in the Disposition Robert and his Heirs are in the last Termination Thereafter Robert enters in a Minut with my Lord Balhaven by which he is obliged to Accept an hundreth twenty nine thousand Merks and therefore obliges himself and as taking burden for his Son and as Tutor and Administrator to him validly and sufficiently to Denude himself and his Son of their Rights to any that he should Nominat but here is a Clause irritant that if Money or sufficient Persons to grant Bond to Robert be not delivered to Robert at Lambmass last and Payment made of the Money at Martinmass last that the Right by the Minute should expire ipso facto without Declarator The Minute was put in the Duke of Hamiltouns Hand that if these Terms were not performed he should Cancel it Robert Hamiltoun Pursues now a Declarator against Balhaven concluding that he hath an absolute and irredeemable Right to the Land by his first Disposition and Infeftment granted to him and his Son and that the Clause irritant is Committed and that thereby the Minute is null and concludes against the Duke that the Minut was put in his Hands upon the Terms foresaid and that he ought to Cancel or Deliver the same the Dukes Advocats suffered him to be holden as Confest but did not produce the Minute It was alleadged for Balhaven no Process till the Minute were produced for it could not be declared null till it were seen It was answered that the Copy of it was produced and verbatim insert in the Lybel and the Pursuer craved the Minute in the Terms Lybelled to be declared null without prejudice to any other Minute if they could pretend it The Lords ordained Processe but ordained the Pursuer before Extract to produce the principal Minute It was further alleadged for Balhaven Absolvitor because the Minute being mutual there could be no failzie in the Defender because the Pursuer neither was nor is able to perform his part of the Minute in respect the Fee of the Estate is in the Person of the Son who cannot be Denuded by any Deed of the Father for as Legal Administrator he hath no power neither can any Father or Tutor Denude a Pupil of their Fee but there must be interposed the Authority of the Lords in a special Process instructing a necessar Cause for the Minors Utility which cannot be in this Case and though the Father could Denude the Son as he cannot yet he is Minor and may Revock and yet it was offered to fulfil the Minut if the Pursuer would Secure the Defender against the Minors by real Security or good Caution The Pursuer answered that the Defense ought to be Repelled because the Defender the time of the Minut knew his Right and his Sons and cannot pretend an impossibility to have made any such Minut upon a ground then palpable and known and yet contend to keep the Minut above the Pursuers head but he must either take it as it stands or suffer it to be declared void 2dly The Pursuer is in sufficient Capacity to Denude his Son by the foresaids Reservations contained in the first Disposition whereby he has full
contra the Magistrats of Queens-ferry Ianuary 2. 1668. ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry and being Charged to Accept and Exerce the Office Suspends on this Reason that by the 29. Act Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year and by a particular Act of that Burgh no Magistrat is to continue above two years and true it is that the Suspender hath served as Baillie two years already It was answered that the Act of Parliament is long since in desuetude and as to the Act of the Burgh the Election of the Suspender being done by them who have power to make that Act is in effect an alterationt hereof and this Burgh being poor and penury of persons to Serve it will dissolve the same and discourage all others to Serve if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantâ—â— and found that the Suspender could not be compelled to serve longer then one year at once in the same Office Dow of Arnho contraâ— Campbel of Calder Ianuary 4. 1668. DOw of Aricho having pursued Campbel of Calder as Heir to his Father for payment of a Bond wherein his Father was Cautioner for the Marquess of Argyl the Bond bore but one Witnesse to Calders subscription and George Campbel one of the Witnesses being Examined if he saw him subscribe Deponed negative but that it was Calders hand Writ to the best of his knowledge there was also other writs produced subscribed by Calder to compare the subscriptions The Lords would not sustain the Bond having but one Witnesse insert to Calders subscrsption upon the foresaid Testimony and Adminicles Mr. Iohn Forbes contra Innis Ianuary 1. 1668 MAster John Forbes as Assigney to Margaret Allerdes having obtained Decreet of Removing against Margaret Innis for Removing from the Lands of Savet wherein the said Margaret Allardes is Infeft in Liferent which being suspended It was alleadged first That this pursuâ—e is to the behove of Margaret Allerdes who could not obtain a Removing against the Defender because the Defenders Husband being Infeft by the said Margaret Allardes Husband and Author of the Lands of Savet principally and of the Lands of Govan and others in Warrandice The said Margaret Allardes did consent to the Disposition of the Warrandice-lands by which she obliged her self to do no Deed in the contrair of that Right and is also bound in Warrandice with her Husband ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands in so far as thereby the Person having Right to the principal Lands upon Eviction recurrs upon the Warrandice-lands and so the Consenters own Deed prejudges the same It was answered that by Deeds contrair to Warrandice were only understood some Right granted by the Disponer or Consenter in prejudice of the Right consented to but no wayes a pursute upon any other Right of the Consenter for it were against Reason and Justice that a Purchaser to make himself secure requiring a Wifes consent to Lands to which she had no Right either Principal or in Warrandice of other Lands that her Consent should prejudge her as to her Liferent lands of which there was no mention and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft it is null and can never oblige her being a Wife The Lords found that this Warrandice did not oblige the Wife and that her Consent did not hinder her to pursue upon her own Liferent albeit ex consequente her pursute excluded one having a posterior Right to her Liferent-lands who thereupon had recourse to the Warrandice-lands to which she Consented seing she had granted no Right prejudicial to the Right Consented to It was further alleadged that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands principally that she should accept the Warrandice-lands in stead of her Liferent-lands which excambion putting the Right of the Warrandice-lands now in her Person she who consented to the Right thereof can never come in the contrair of her own Consent to prejudge the same It was answered that a Consâ—nt cannot exclude any supervenient Right of the Consenter but only such Rights as the Consenter had the time of the Consent it is true that a Disponer with absolute Warrandice if he acquire a Right it accresces to his Successor but it is not so in a Consenter whose warrandice is not found to be Obligator further then as to the Rights in the Consenters Person at that time Which the Lords Sustained It was further alleadged that the Pursute as to the behove of the Heir of the Disponer of the Lands in question whose Predecessor being bound in absolute Warrandice he can make no use of no Right prejudicial to his Warrandice 2dly Albeit he be not Heir yet he hath behaved himself as Heir and thereby is lyable to fulfil the Defuncts Warrandice and so cannot come against it It was answered that behaving as Heir being a vitious passive Title is not sustainable by way of exception in this case The Lords Sustained the same and found both members of the alleadgeance relevant Margaret Forbes contra 〈…〉 Eodem die MArgaret Forbes having granted a Tack of her Liferent-lands to 〈…〉 bearing expresly for payment of such a Sum of Money and bearing to endure for 19. years she did receive a Back-bond of that same Date bearing that so soon as the Sum was payed the Tack should become void the Tack coming to a singular Successor she pursues him for Compt and Reckoning and Removing and insists upon the Tenor of the Tack and Back-bond It was alleadged for the Defender that the Back-bond did not militat against him being a singular Successor neither being Registrat nor Intimat to him before his Right in respect the Tack is a real Right and no Obligement or Provision of the Tacks-man can prejudge a singular Successor The Lords Repelled the Defense and Sustained Processe against the Defender in respect of the Tack and Back-bond The old Lady Clerkingtoun contra Clerkingtoun and the young Lady Ianuary 9. 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual out of the Mains of Clerkingtoun for thirty six years bygone she pursues a Poinding of the ground It was answered for the Laird and his Mother that the Pursuer having been so long out of Possession cannot make use of a Possessory Judgement but must first declare her Right 2dly The young Lady is also Infeft in an Annualrent and hath been by vertue thereof more then seven years in Possession and so hath the benefit of a Possessory Judgement till her Right be reduced and cannot be Dispossest by the old Ladies posterior Infeftment The Lords Repelled both the Defenses and found that an Annualrent is debitum fundi and is not excluded by Possession of a posterior Right and needs no Declarator and
of the Rents of the Lands The Lords Sustained the Infeftment only for a third Mary Dowglasse Lady of Wamphray contra the Laird of Wamphray Ianuary 22. 1668. UMquhil Wamphray having Infeft his Lady in two thousand Merks of Liferent yearly by her Contract of Marriage out of certain Lands therein mentioned and being obliged to pay her as well Infeft as not Infeft and to warrand the Lands to be worth two thousand Merks of Free Rent She pursues this Wamphray for payment who alleadged Deductions of publick Burdens It was answered that an Annualrent was not lyable to publick Burdens for the Act of Parliament 1647. made thereanent was Rescinded and not Revived and this Provision is payable not only really but personally though there had been no Infeftment and that the obligement to make the Land worth two thousand Merks of free Rent could be to no other End but to make the Annualrent free especially the Contract being in anno 1647. after Maintainance was imposed which was the heaviest Burden It was answered that an obligement for payment of an Annualrent relating to no particular Land could not be burdened with the Land or if it did relate to a stock of Money the ordinar Annualrent of the Money behoved to be free but this Annualrent relates to no stock and its first Constitution is out of the Lands mentioned in the Contract so that albeit there had been no Infeftment it must bear proportionably with the Land and albeit the Act of Parliament be Rescinded yet the common ground of Law and Equity and the Custom thereupon remains neither doth the provision to make the Land worth so much of free Rent infer that therefore the Annualrent must be free which would have been so exprest at the Constitution of the Annualrent if it had been so meaned The Lords found this Annualrent lyable for the Assesment notwithstanding the Act of Parliament was Rescinded and all that was alleadged against the same was repelled Iohn Iustice contra Mary Stirling his Mother Ianuary 23. 1668. THere was a Bond granted by Stirling of Coldoch whereby he granted him to have received from Umquhil Iohn Iustice and Mary Stirling his Spouse the Sum of 1300. Merks and obliged him to pay to the said Husband and his Spouse and longest liver of them two and the Heirs gotten between them or their Assigneys which failzying to the Heirs of the last liver the said Mary having survived did uplift the Sum and now Iohn Iustice as Heir of the Marriage to his Father pursues his Mother to make forthcoming the Sum and imploy the same to her in Liferent and to him in Fee It was alleadged for the Defender Absolvitor because by the conception of the Bond she is Feear and so may dispose of the Money at her pleasure The Pursuer answered that the conception of the Bond did no wayes make the Wife Feear but the Husband according to the ordinar Interpretation of Law in Conjunct-fees betwixt Husband and Wife and as to the Clause in relation to the longest liver their Heirs and Assigneys the Fee could not be Constitute thereby otherwise the Fee behoved to be pendent and uncertain and in effect be in no Person so long as they live together but after the Death of either the Fee should then begin to be Constitute in the Surviver which is inconsistent and therefore the Fee behoved to be Constitute by the first words obliging to pay the Sum to the Husband and Wife the longest liver of them two whereby the Husband was Feear and might have disposed thereupon during his Life but without prejudice of his Wifes Liferent there is no doubt but this Sum might have been Arrested for his Debt and it could not be then pretended that ex evenâ—u the Wife by surviving might become the Feear It was answered for the Wife that albeit Conjunct-fees between Man and Wife do ordinarly Constitute the Husband Feear yet there are many Cases in which such Conjunct fees the Wife may be Feear and here the termination being upon the Surviver makes her the Surviver sole Feear although both were Conjunct Feears before and neither of them properly a Liferenter till by the event it did appear who should Survive neither can any such subtilty of the dependence or uncertainty of the Fee render the intention of the Parties ineffectual The Lords found that by the foresaid Clause the Husband was Feear and the Heirs of the Marriage were Heirs of Provision to him and that failzying the Heirs of the Marriage the Wifes Heirs were substitute as Heirs of Tailzie and therefore ordained the Sum to be so imployed and secured that if the Pursuer being the only Heir of the Marriage should Die before he dispose thereupon it should return to the Heirs and Assigneys of the Mother The Lady Wolmet and Dankeith her Spouse contra Major Biggar and Iames Todrig Ianuary 24. 1668. THe Lady Wolmet and Dankeith her Spouse pursues Major Biggar and the Tennents of Wolmet for Mails and Duties Compearance is made for Iames Todrig who being Assigned to an Annualrent due out of the Lands of Wolmet to the old Lady Wolmet by an Infeftment long prior to this Ladies Infeftment upon which Right there was also raised an Inhibition whereupon Todrig as Assigney pursues Reduction of the Pursuers Right and several others and obtained Decreet thereupon and now alleadges that the Lady can have no Mails and Duties because her Right stands Reduced at the Instance of the said Iames Todrig who hath also Appryzed upon his anterior Annualrent The Pursuer answered that the alleadgeance ought to be repelled because the Right of his Annualrent Appryzing and Reduction has been several years in the Person of Major Biggar who has been all that time in Possession of the Lands and therefore by his Intromission Todrigs Appryzing is satisfied within the legal It was answered for Major Biggar albeit the Right was and had been his and he in Possession yet the Appryzing cannot be satisfied thereby unlesse he had Possest by vertue of the Appryzing which cannot be alleadged because he offers him to prove that he Entered and continued in Possession many years before he got this Right by vertue of other Infeftments The Pursuer answered that by the Reduction at Todrigs Instance all Major Biggars Rights stands reduced so that albeit by them he entered in Possession yet he cannot ascribe his Possession to them after they were Reduced It was answered that albeit his Rights were Reduced there was no Removing or Action of Mails and Duties intented against him upon the prevailing Right and therefore his Possession behoved to be ascribed to his prior Possession though Reduced 2dly He having now divers Rights in his Person may ascribe his Possession to any of them he pleases against this Pursuer from whom he derived not his Possession nor the Cause thereof 3dly It was answered that the Pursuer might acquire this Right ad hunc effectum to purge it
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
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ— put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâ—ar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books â—nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nâ—t for the Damnage and Interest neâ—â—her against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ— first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâ—ved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
upon consideration of the Pasturage without which it could neither give the Rent it payes nor the Price so that when my Lord Dispones the Lands with the Pertinents and at the time of the Disposition this Pasturage is unquestionably Possest as a Pertinent of the Land the extended Charter and Disposition ought in all Reason to comprehend it expresly neither is there any difference whether the Pasturage be of a Moor contiguous or belonging to the whole Barony seing it cannot be Contraverted but it was Possest as Pertinent of this Room the time of the Bargain and to clear that it was so Possest the Charger produced a Wodset granted by the Lord Borthwick to himself of the same Room bearing expresly Pasturage in the common Moor of Borthwick The Suspender answered that the Wodset made against the Charger in respect this Clause being express in the Wodset he had not put it in the Minut which as jus nobilius absorbed the Wodset and cannot be looked upon as a Discharge of the Reversion only because my Lord was Superior by the Wodset and by the Minut he is to Resign likeas in the minut there is a Disposition of the Teinds which is not in the Wodset The Lords found that the Minut ought to be extended bearing expresly the common Pasturage in the Moor of Borthwick in respect the same was a Pertinent of the Lands Sold the time of the Bargain and was not excepted Sir George Mckenzy contra Iohn Fairholm Eodem die SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him as Cautioner for his Father in his Minority It was alleadged for Iohn Fairholm that he could not Reduce upon Minority because he had Homologat the Bonds after his Majority in so far as he had accepted Discharges of the Annualrent bearing Deduction of the Bond by his Father as Principal and him as Cautioner and Discharging them both which Discharges Sir George himself did Receive from Iohn Fairholm and payed the Money Sir George answered that the Discharges do not bear that he payed the Money but bears that the same was payed by the Principal Debtor and his Receiving of a Discharge not having payed cannot import his Homologation or acknowledgement of the Bond for to prevent question and trouble one may take Discharge of what he denyes to be Due and the Bond being then standing Unreduced he may well accept a Discharge not knowing the event of the relevancy or probation of his Minority The Lords Repelled the Defense and found that the Discharges imported no Homologation unlesse it were instructed that Sir George out of his own Money payed the Annualrent The Laird of Haining contra the Town of Selkirk February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk and the Laird of Haining the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty by vertue of his Infeftments of the Lands of Haining which Lands are a part of the Kings Property of the Barony of Selkirk and that this Common is the Commonty of the said Barony Possest by all the adjacent Fewars of the Barony and whereof they have been in immemorial Possession The Lords did before answer ordain both Parties to produce all Rights Writs or Evidents they would make use of in the Cause and also to adduce Witnesses hinc inde of both their Possessions and interrupting others Haining produced a Charter by the King in anno 1505. of the Lands of Haining being a part of the Kings Property bearing cum partibus et pertinentibus cum pascuis et pasturis but not bearing in communi pastura or cum communiis generally or particularly in the Common of Selkirk he did also produce posterior Charters of the same Land bearing cum communi pastura and did adduce several Witnesses proving 40. years continual Possession but some of his Witnesses proved Interruptions by the Town of Selkirk's cutting of Divots cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh posterior to Hainings first Charter bearing that their Ancient Evidents were burnt by the English and therefore the King gives them the Priviledge of the Burgh of Selkirk with the Burgage Lands thereof cum communiis ad dictum Burgum spectantibus which the King confirms by a posterior Charter giving the Town warrand to Ryve out 1000. Aikers of Land of the Common they did also produce several Instruments of interruption not only by cutting of the Fail and Divots cast by Haining or his Tennents but by turning their Cattel off the Moor as proper to themselves and turning off all the Heretors Cattel they found thereupon and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining Decerning them to Defist and Cease from the Moor in which Decreet Hainings Predecessor was Provost of Selkirk and is Pursuer of the Cause they also produced two Missives Written by Umquhil Haining acknowledging that the Town had cut his Divots Casten upon the Head Room and making apollogy for Casting of the same denying it to be by his Warrand or Knowledge they did also produce two Acts of the Town Court bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike and to Cast some Divots for his Tennents Houses they did also adduce several Witnesses proving their continual and uninterrupted Possession of the Moor this fourty years and more which proved also frequent interruptions against Haining especially by cutting of Divots and also by turning off his Cattel upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor and that they had debarred the Laird of Haining and his Tennents therefrom whenever they heard they came upon the same It was answered for Haining that he did not deny the Town of Selkirks Right of Pasturage in the Moor but did deny they had Right of Property therein but that the property did yet remain in the King as a part of the Barony of Selkirk being of the Kings annexed Property but that the said Property as to the Moor was now burdened with a Common Pasturage belonging to the Town of Selkirk and also belonging to the Laird of Haining and the other Feuars of the Barony of Selkirk and therefore alleadged that his Charter in the year of God 1507. being long before any Charter granted by the King to the Town did Feu to his Predecessors the Lands of Haining cum pertinentibus cum pascuis pasturis and this Common being the Commonty of the Barony of Selkirk the King Feuing a part of the Barony cum pertinentibus et pascuis did certainly thereby grant all that belonged to these Lands as Pertinent thereof as it was the time of the Feu being then Possessed by the
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot extend
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâ—ty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
a 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 that the principal Inventar was produced by Hartrie on his Death-bed and shown to his Friends and by them Read and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same and held in all points and that the principal Inventar was all written with Hartries own Hand except an alteration made upon a Bond of Tarbets which was written by Iohn Ramsay's Hand by direction of Hartrie some hours before he Died and was not able to Subscribe it with some other alterations in relation to Bonds wherein the Children Substitute were Dead but that this Article in relation to Whiteheads Bond was all written with Hartries own Hand The Lords found the Tenor proven conform to the Subscribed Copy and found the said Inventar Holograph except in relation to Tarbets Bond and these other particulars written by Iohn Ramsay's Hand so that Holograph was proven without production of the principal Writ joyntly with the Tenor albeit some part of the Writ was not Hartries Hand but written by Iohn Ramsay's Hand but these not being Subscribed by Hartrie were in the same case as if they had been omitted forth of the Inventar and the remainder of the Inventar which only was Probative was all Holograph Patrick Park contra Nicol Sommervel November 12 1668. PAtrick Park pursues a Reduction of a Bond of 1200. Merks Scots upon these Reasons First Because albeit the Bond bears borrowed Money and be in the Name of Nicol Sommervel yet he offers to prove by Nicols Oath that when he received the Bond it was blank in the Creditors Name and offers to prove by Witnesses that the true Cause thereof was that Sommervel Nicols Brother having win all the Pursuers Money he had at the Cards he being then distempered with Drink caused him Subscribe a blank Bond for filling up what Sum he should win from him and that this Sum was filled up in this Bond which he offers to prove by the Oath of Nicols Brother that wan the Money and the other Witnesses insert so that the Clause of the Bond being played Money by the Act of Parliament 1621. the Winner can have no more but 100. Merks thereof 2dly Before Nicols Name was filled up or any Diligence or Intimation thereof there was a Decreet Arbitral betwixt the Winner and the Pursuer wherein all Sums were Dischargedâ— which Discharge being by the Câ—dent to whom the Bond was Delivered before the filling up of Nicols Name or Intimation thereof which is in effect an Assignation excludes the Assigney It was answered for the Defender that he opponed the Bond bearing borrowed Money grantled in his own Name and though he should acknowledge that the Bond was blank in the Name and that thereby his Name being filed up he is in effect and Assigney yet the Bond being his Writ the Bond cannot be taken away but by Writ or Oath of Party and not by his Cedents Oath or Witnesses insert unless it were to the Cedents behove or without a Cause Onerous as the Lords have found by their Interlocutor already 3dly Albeit it were acknowledged to be played Money the Act of Parliament is in Desuetude and it is now frequent by Persons of all quality to play and to pay a greater Sum then 100. Merks 4thly The Pursuer who loseth the Money hath no Interest by the Act of Parliament because thereby he is appointed to pay the Money but the superplus Money more then 100. Merks is appointed to belong to the poor and the Defender shall answer the poor whenever they shall pursue but it is jus tertij to the loser who cannot detain the Money thereupon but whatever was the cause the Defender having received the Bond for a Cause Onerous and being ignorant that it was for any other Cause but true borrowed Money he must be in tâ—to otherwise upon this pretence any Bond may be suspected and the Cedent after he is Denuded by Witnesses may take the same away The Lord Advocat did also appear for the Poor and claimed the superplus of the Money more then 100. Merks and alleadged that the Act of Parliament did induce a vitium reale which follows the Sum to all singular Successors and that though ordinarly the Cedents Oath or Witnesses be not taken against Writ yet where there is Fraud Force or Fault Witnesses are alwayes Receiveable ex officio at least and ought to be in this Case where there is such Evidence of Fraud that it is acknowledged the Bond was blank in the Creditors Name when Nicol Received it and the filling up was betwixt two Brethren and the Debitor dwelling in Town did not ask him what was the Cause of the Bond and that an Act of Parliament cannot fall in desuetude by a contrait voluntar Custom never allowed by the Lords but being vitious against so good and so publick a Law The Lords found the Act of Parliament to stand in vigour and that the Loser was lyable upon the same grounds and therefore ordained the Sum to be Consigned in the Clerks Hands and before answer to whom the Sum should be given up ordained Nicols Oath to be taken when his Name was filled up and for what Cause Margaret Calderwood contra Ianet Schaw November 14. 1668. MArgaret Calderwood pursues Ianet Schaw to pay a Bond as Heir to Iohn Schaw granted by him who alleadged Absolvitor because the Bond is null wanting Witnesses the Pursuer offered him to prove Holograph The Defender answered that Holograph could not prove its own Date so that it is presumed the Bond was granted on Death-bed unlesse 〈◊〉 be proven that the Date is true as it stands or at least that it was Subscribed before the Defuncts Sickness The Pursuer answered that Holograph proves its Date except contra tertium but it is good against the granter or his Heir who cannot be heard to say that his Predecessorsâ— Deed is false in the Date The Defender answered that an Heir might very well deny the Date of a Holograph Writ otherwise the whole benefit of the Law in favours of Heirs not to be prejudged by Deeds on Death-bed may be evacuat by Antedated Holograph Writson Death-bed The Pursuer answered that he was willing to sustain the Reason founded on Death-bed which was only competent by Reduction and not by exception or reply The Defender answered that where Death-bâ—d is instantly verified by presumption of Law and that the Pursuer must make up a Write in rigore juris null for want of Witnesses he ought without multiplication of Processes both to prove the Bond Holograph and of a Date anterior to the Defuncts Sickness Which the Lords found Relevant William Duncan contra the Town of Arbroth November 17. 1668. WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon in Iune 1651. to be made use of for the Defence of their Town against the English got from the Magistrats of Arbroth a Bond of this Tenor that they did acknowledge them to have
Father being Infeft in an Annualrent effeirand to the principal sum due to him by the Lord Balcombie they did thereafter obtain Decreet for the principal sum and thereupon Appryzed the Property wherein they stand Infeft holden of the King in which Appryzing there is a Reservation exprest but prejudice of the Infeftment of Annualrent and now being desirous to be Infeft in the Annualrent as Heirs to their Father and that themselves were Superiours by the Infeftment on the Appryzing and conceived it not proper for them to Infeft themselves did therefore desire the Lords to grant VVarrand to direct Precepts forth of the Chancellary for the King to Infeft them The Lords having considered the case and argued the matter amongst themselves whether it were more secure and legal that they should be Infeft by the King upon their Supplication or that they as having Right to the Property by their Infeftment on the Appryzing should grant Precepts for Infefting themselves in the Annualrent as Heirs to the Annualrenter or whether their Infeftment in the Superiority would consolidat the Annualrent without Infeftment The difficulty against the Kings Infefting of them was that the King Infefts none but these that holds immediatly of Him or upon the disobedience of the immediat Superiour supplendo vices To which it was answered that the King may supply the place of the immediat Superiour either when he will not or cannot Infeft his Vassal and the Petitioners conceive that in this case they cannot and both being extraordinary Remeeds the Lords may do the same and have done it in former Cases The difficulty as to Infefting themselves was that the Right of Property and jus nobilius did extinguish the Right of Annualrent and yet the Right of Property may be Reduced and then they would be necessitat to Defend themselves by the Annualrent and therefore it is not an absolute Extinction but in tali casu and therefore they have reserved the same in the Appryzing The difficulty as to the third way was that if the Right of Superiority should be Reduced they should be without Infeftment at all The Lords found that they might either Infeft themselves by their own Precept or might get Precepts from the King as was desired periculo petentium or they might make use of both together Mr. Alexander Seaton contra George Seaton of Menzies December 2. 1668. MR. Alexander Seaton Heir and Executor to Iames Seaton his Brother pursues George Seaton as Heir to his Father Iames Seaton for making his Fathers Tutor Accompts as being Tutor to the Pursuers Brother and for instructing that he was Tutor produced several Writs Subscribed by him as Tutor Testamentar The Defender alleadged First That the condescendence was not relevant to Instruct the Defenders Father Tutor unless the Testament whereby he was nominat were produced otherwayes his acknowledgement can only make him but Pro-tutor and so not lyable for all omissions and no sooner lyable then after the date of these Writs 2dly Albeit the Defenders Father had been Tutor yet by the Writs produced it is evident that he was but one of more Tutors and therefore no Process against him till they be all called The Pursuer answered that the acknowledgement to have been Tutor was sufficient against him who Subscribed the same and that there was no necessity to call all the rest seing the whole Tutors were lyable in solidum and as ordinarly parties bound conjunctly and severally may be conveened conjunctly or severally so may Tutors who as others may except upon the performance of other Tutors as well as their own neither is the case of Tutors alike with Cautioners who are not lyable in solidum for Tutors as they are lyable conjunctly and severally for the whole Office so are they conveenable conjunctly and severally for the same The Lords Repelled the first alleadgance and found the Writs produced instructed the Defenders Father Tutor and not only Pro-tutor for if the Testament had been produced shewing other Tutors so that the Acknowledger could not have been tutor testamentar it would have made him but Pro-Tutor but that not being it instructed him Tutor As to the other point in respect the Tutor was dead and his Heir only but conveened who could not know the Administration the Lords would not sustain Process till they were also called Agnes Goodlat contra George Nairn December 8. 1668. AGnes Goodlat as representing the umquhil Wife of George Nairn pursues for the third of the Moveables belonging to him the time of his Wifes Decease It was alleadged for the Husband that before Division the Heirship moveable behoved to be drawn It was answered that there could be no Heirship of a man that was living It was answered that albeit there was no actual Heirship yet the best of every kind was Heirship Moveable wherein the Wife had no Interest Which the Lords sustained and Ordained the Heirship to be first drawn Earl of Argile contra George Stirling December 9. 1668. THe Earl of Argile having pursued George Stirling to Remove he alleadged Absolvitor because he stood Infeft on an Appryzing It was Replyed that the Appryzing and Infeftment could not defend him because the Person from whom he Appryzed being a Vassal of the Earl of Argiles and his Right not being Confirmed by the King the same could not exclude the Pursuer the Kings Donator and the Appryzer could be in no better case then his Author The Defender Duplyed that he was in better case because he being Infeft by the King before the Pursuers Gift when the King had both Superiority and Property it is equivalent to him as if the King had Confirmed his Authors Right It was answered that Infeftments upon Appryzings that pass in Course and are not noticed in Exchequer cannot prejudge the King and take away the benefit of the Gift which must pass by a several Signature Which the Lords found Relevant and Repelled the Defense and Duply and Decerned Scot contra Aitoun December 11. 1668. MR. Iames Aitoun having Disponed the Lands of Grainge with the burden of 12000. Merks to be payed to his Daughters Iohn Scot having Married one of the Daughters in their Contract of Marriage the Daughter Anna Aitoun Assigns her part of the 12000. Merks to her future Spouse and in the same Contract he acknowledgeth the Receipt of the Money from Mr. Robert Aitoun the Debitor and therefore with consent of the said Anna Discharges the said Mr. Robert by a Contract of the same Date betwixt Iohn Scot and Mr. Robert relating the Contract of Marriage but acknowledges there was no Sums payed for the Discharge contained in the said Contract but that the Security contained in this Contract was granted therefore and therefore he gives a new Heretable Security to Iohn Scot the Marriage Dissolves within year and day by the Death of the said Anna without Children she in her Testament names the said Iohn Scot her Husband her Executor and universal Legator George Scot as
Appryzing to be led ten years after his Commission and now having taken Right to the Appryzing himself he cannot therewith Exhaust the price especially against this singular Successor having acquired bona fide after a Decreet of Suspension in foro contradictorio when the Defender had Right to the said third Appryzing and alleadged nothing thereupon The Defender answered that he cannot be Excluded from his Defense by the Decreet of Suspension as being competent and omitted the time of that Decreet because Competent is only Relevant against Decreets in ordinary Actions but neither in Reason nor Custom is the same Relevant against Decreets of Suspension there being this evident difference that in Decreets of Suspension the Reasons must be instantly verified but in ordinary Actions there are Terms assigned for proving Defenses and so it hath ever been practised by the Lords The Pursuer answered albeit it was anciently the Custom to admit Competent and omitted only against Decreets upon ordinary Actions Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension and albeit through neglect of the Clerks the Act hath not been Booked The Session being interrupted by the War shortly thereafter ensuing yet it is notorly known and was in practice Anno 1653. when the Decreet was obtained against this Defender whereupon the Appryzing proceeds and that practice was both just and necessar for if Decreets might be Suspended as oft as the Suspender can produce another Writ the most solemn Sentences should be made Insignificant for the ground of Excluding things Competent and omitted is not only that publick Sentences upon compearance are as valid as Transactions which upon no pretence can be Rescinded that Pleas be not perpetual but also because they are omitted dolo animo protrahendi litem which is ever presumed unless another Cause be assigned wherefore they were omitted as noviter veniens ad notitiam which is Sustained even as to Decreets in ordinar Actions and if in no case competent and omitted be allowed in Suspensions we shall have no more Decreets in ordinar Actions but the Defenders will still be absent and will Suspend as oft as they can find different Grounds as if of one Sum one have twenty or thirty several Receipts he will raise as many subsequent Suspensions which will at least serve for as many Sessions and though it should be alleadged quod dolo omisit it would not be Relevant so that if the Suspender can purge his Fraud either as not knowing of the Writ whereon he hath again Suspended or as not then having it presently in his power to instruct it would be sufficient which clears the difference betwixt Decreets of Suspension and other Decreets to operat no further than that in Suspensions the Fraud is purged by showing that the Writ was not ad manum which is not so in ordinar Actions where Terms would have been assigned to get the Writ and albeit the Lords might by modifying great Expences bar the multitudes of Suspensions they could hardly do it justly if of the Law it were no fault and it is known the Lords are neither in use of nor have time for such modifications The Lords superceeded to give answer as to this Point till the Compt proceeded as to the Particulars but the Lords had no respect to the alleadgance upon the Inhibition seing no Decreet followed nor upon the Decreet Arbitral which they found not Equivalent to an Assignation or Precept but the Lords found the Commission contained in the minute not to oblige the Defender as to any Diligence and therefore found that as to that Point he might acquire the third Appryzing which would have excluded him albeit he might have prevented it by Diligence Mr. Robert Swintoun contra Iohn Brown December 18. 1668. MArgaret Adinstoun being Infeft in Liferent in certain Roods of Land near Hadingtoun she and her second Husband grants a Tack to Iohn Brown thereof for certain years and thereafter till he were payed of 400. merks owing to him by the Husband after that Husbands Death she being Married to a third Husband there is a Decreet of Removing purchast at her and that Husbands Instance against Iohn Brown but the Husband did not proceed to obtain Possession by vertue thereof but brevi manu Ejected Brown whereupon Brown obtained a Decreet of Re-possession now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown he Charges Iohn Brown to Remove who Suspends on this Reason that he having obtained Decreet of Re-possession after the Decreet of Removing upon the Husbands violence cannot now be Removed without a new Warning The Charger answered that the Decreet of Re-possession bearing to be ay and while this Suspender was legally Removed and that in respect he had been put out Summarly and not by the preceeding Decreet of Removing which having now taken effect he being in Possession the Charger may very well Insist that he may now legally Remove by vertue of the Decreet of Removing The Lords Repelled this Reason in respect of the answer and found no need of a new Warning The Suspender further alleadged that he cannot Remove because he bruiks by vertue of a Tack granted by Margaret Adinstoun and her second Husband The Charger answered First That the Tack being only for four years specially and an obligement not to Remove the Tennent while the four hundred Merks were payed which is not a Tack but a personal obligement which cannot defend the Suspender against Mr. Robert Swintoun the singular Successor 2dly The Tack is null being Subscribed but by one Nottar The Suspender answered that a Right of Liferent not being Transmissible by Infeftment but only by Assignation the Assigney is in no better case nor the Cedent except as to the Probation by the Cedents Oath 3dly The Tack is Ratified judicially by the Wife in the Court of Northberwick which is more nor the concourse of any Nottar 4ly If need beis it 's offered to be proven by the Wifes Oath that the Subscription was truly done by the Nottar at her command The Charger answered that the judicial Ratification cannot supply the other Nottar because the same Nottar who is Nottar in the Tack as also Nottar in the judicial Ratification which is but done in a Baron Court So it is but assertio ejusdem notarij no stronger nor it was neither can it be supplyed by Margaret Adâ—â—stouns Oath de veritate facti because her Oath cannot be received in prejudice of her Assigney and though her self were Charger the Law requiring two Notâ—ars till both Subscribe the Writ is an unsubscribed Writ and in all matters of this nature parties may resile before Subscription The Lords found the Tack valid against the Wife Subscriber thereof and her assigney ay and while the sum thereof were payed but found the Tack was null as being but by one Nottar notwithstanding of the judicial Ratification being by the same Nottar
and found that the Cedents Oath could not be taken in prejudice of the Assigney to astruct the verity of the Subscription unless the Assignation had been gratuitous or the matter had been litigious before the same In which case they found that there was no place to Resile after the Subscription of the first Nottar the verity and warrand of the Subscription being proven by the said Margarets Oath The Suspender further alleadged that he could not Remove because the Liferenter being year and day at the Horn he had a Gift of her Liferent Escheat and thereby had right to possess her Liferent-Land The Charger answered non relevat because the Gift was not declared 2dly It could not be declared because it proceeded upon a Horning against a VVife cled with a Husband who being sub potestate viri cannot be Contumacious or Denunced Rebel thereupon The Suspender answered that he needed no Declarator himself being in possession of the only Right to which the Declarator could reach 3dly The Horning albeit against a VVife was valid unless it had been upon a Debt contracted during the Marriage but this Horning proceeding upon a Decreet against a VVife as Executrix and vitious Intromissatrix with her Husbands Goods a Horning upon her own Fact or Fault was alwayes effectual The Lords would not sustain the Gift without a Declarator and superceeded any Extract at the Chargers Instance till a day betwixt and which he might insist in his Declarator and superceeded till that time to give answer in relation to the Horning because the Kings Officers behoved to be called Mr. Alexander Seaton contra Menzies December 19. 1668. MR. Alexander Seaton as Executor to his Brother Pitmedden pursues Seaton of Menzies as Representing his Father who was one of the Pursuers Brothers Tutors for his Fathers Intromission with the Pupils Means who alleadged Absolvitor because the Pupil after his Pupillarity had granted a Discharge to one of the Co-tutors which did extinguish the whole Debt of that Co-tutor and consequently of all the rest they being all correi delendi â—yable by one individual Obligation which cannot be Discharged as to one and stand as to all the rest for albeit pactum de non petendo may be granted to one and not be profitable to the rest a simple Discharge which dissolveth the Obligation of the Bond must be profitable to all The Lords Repelled this Defense unless the Discharge had born payment or satisfaction given and in tantum they found it would be Relevant but not a simple Discharge which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor in omissis male administratis there being nothing here but this Tutors own proper Intromission now insisted for The Lords Repelled the Defense simply Margaret Mckenzie contra Robertsons December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband to pay her share of the Moveables who alleaged Absolvitor because there was as much Debt as would exhaust the whole Moveables It was answered non relevat unless it were alleadged that the Executors had payed the Debt for the Debts being yet due it is jâ—s tertij for them to alleadge thereupon neither can this Pursuer propone alleadgances of payment Compensation or any other or the Defenders Reply upon the Debts belonging to third Parties unless they were pursuing themselves but the Pursuer is content to find Caution to repeat her share in case they were Distrest The Lords Repelled the Defense but prejudice to the Executor to Suspend upon double Poinding calling the Creditors It was further alleadged for the Defenders that they must have allowance of Sums bearing Annualrent since 1641. It was answered that no such Sums can burden the Relict her part because by the Act of Parliament the Relict has no share of such Sums if they were due to the Defunct and therefore a pari she cannot be burdened with such Sums being due by the Defunct The Defenders answered that the Act of Parliament excludes Relicts from such Sums as bear Annualrent being due to their Husbands but doth not bear that they shall be free of such Sums due by their Husbands and Statutes being stricti juris the Lords cannot extend them beyond their Sense to like cases The Pursuer answered that the Lords always did and might Explain and Extend Acts of Parliament to Cases implyed and consequent albeit not verbatim exprest and as to this Act of Parliament it bears expresly that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum relictam before which the Bonds bearing Annualrent could not have burdened the Relict for the word such Bonds may not only be extended to Bonds due to Defuncts but to Bonds due by Defuncts The Lords Repelled also this Defense and found the Relicts part not to be burdened with any Bonds due by her Husband bearing Annualrent unless they had become Moveable by a Charge or that the Term of payment of the Annualrent was not come at the Defuncts death Smith contra Muire Eodem die JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband to pay the sum of 110. pounds due by Bond by the said George to this Pursuer his Sister obtained Decreet thereupon and Appryzed the Liferent of the said Margaret Muire who Suspended and raised Reduction on this Ground that she could not be lyable as vitious Intromissatrix because she possest her Husbands Moveables by a Title in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage for her Liferent use and so she could only be lyable for making forthcoming the true value after her Death The Charger answered First That there could be no Liferent of Moveables quae usu consumuntur and all Liferents of usus fructus must be salvâ rei substantiâ 2dly Though a Liferent could consist in Moveables yet the meaning of such a Clause of all Moveables acquired during the Marriage must be understood the free Moveables deducing Moveable Debt and cannot be understood to exclude lawful Creditors The Lords found the Clause to be understood only of free Gear and not to exclude the Pursuers Debt but found it a sufficient ground to free the Suspender from vitious Intromission and to Retrench the Decreet to the true value Sir Iohn Weems contra Forbes of Tochâ—n Ianuary 2. 1669. SIr Iohn Weems having Charged Tochon for Maintainance due in Anno 1648. or 1650. conform to Act of Parliament and Commission granted to him and Decreet of the Lords Tochon Suspends on this Reason that singular Successors are free by the Act and he is a singular Successor by Appryzing It was answered that the exception of the Act was only in favours of singular Successors who had bought the Lands which cannot be extended to Appryzers who oftimes have the
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
Decreet of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâ—cit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
of Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir
Iames his Relict who being provided by her Contract of Marriage to certain Lands with an Obligement that they should be worth 2400. merks yearly here Husband did thereafter during the Marriage grant her a Tack of the whole remanent Lands he had then with a general Assignation and Disposition omnium bonorum the Tack bears to be for Love and Favour and that the Lady may be in the better capacity to aliment his Children and bears 20. pound of Tack Duty in case there be Children and a Duty equivalent to the Rent of the Land if there be none the entry to the Tack is at the next Term after the granting thereof and not at the Husbands Death Upon this it was alleadged for the Lady that she ought to be preferred to the Mails and Duties of the Lands in question by her Tack cled with Possession by her Husbands Possession before contracting of thir Creditors Debt which must be understood her Possession stante matrimonio and by her own Possession after her Husbands Death before Chisholms Apprizing or Infeftment It was alleadged for Chisholme that the alleadgance founded upon the Tack ought to be Repelled First Because it is a Donation betwixt Man and Wife null of it self nisi morte confirmetur and so is still ambulatory and in the Husbands power during his Life and is in the same case as Bonds of Provision granted to Children and keeped by their Father which being still in his power any Debt Contracted after would be preferable thereto So here this Tack being in the Husbands power the Contracting of a Debt thereafter is preferable thereto and is an Implicit Revocation thereof 2dly This Tack being a most fraudulent latent and clandestine Deed betwixt Man and Wife whereupon nothing followed in her Husbands Life the Creditors having no way to know any such thing and having Contracted bona fide are Insnared and Defrauded thereby and the Lords having Declared that in regard they had Reponed the Lady against a former Decreet She should now Dispute her Right of the Tack as in a Reduction against which this would be an unquestionable Reason that it is a latent fraudulent Contrivance containing a Disposition omnium bonorum It was answered for the Lady to the first That Donations betwixt Man and Wife are not by Our Law and Custom null but are valid a principio unless they be actually Revocked and albeit Implicit Revocations has been Sustained by Dispositions or Infeftments of the same Lands to others yet never by a Personal Bond or Contracting of a Debt posterior To the second The Ladies Right can never be Interpret in fraudem creditorum there being no Creditors the time of the granting thereof and the Husband being free and Incapacitat by no Law an Infeftment of the remainder of his Estate to her so Cautioned as this is is both legal and favourable and albeit in the same there be a Disposition omnium bonorum which cannot reach to Goods acquired after the Debts yet the Tack is valid utile per inutile non vitiatur 3dly Albeit this Tack bear to be a Donation and for Love and Favour yet it is neither Fraudulent nor Revockable because it is donatio remuneratoria granted by the Husband who was obliged to make up the Joynture Lands contained in the Contract of Marriage to 2400. merks of which they came short of four at the beginning and other four have been Evicted It was answered for Chisholme the Creditor that this alleadgance was no ways Competent against him who is a Creditor contracting bona fide but the Lady ought to pursue her Son as Representing his Father for fulfilling her Contract or at least till that be declared against the Heir who is the only competent Party the Creditor must Possess conform to his Right 2dly Whatever was the Husbands Obligement the Husband hath not granted this Tack in Remuneration or Satisfaction thereof but expresly for Love and Favour without mention of any other Cause It was answered that the expressing of Love and Favour which may relate to the general Disposition cannot exclude other Causes and albeit it make the Tack a Donation yet it is well consistent to be a Remuneratory Donation which is not Revockable The Lords found the Alleadgance Relevant that this was a Remuneratory Donation and that there was also much wanting of the Contract of Marriage and found it competent against this Apprizer and superceeded to give answer to the other Points that if it were not proven Remuneratory whether it could be Reduced as latent and fraudulent at the Instance of posterior Creditors or as being in the Husbands power was indirectly Revocked by Contracting of the posterior Debt having no more Estate to burden with his Debt Boil of Kelburn contra Mr. Iohn Wilkie Eodem die BOil of Kelburn having gotten a Commission from the Presbyterie of Irving to uplift some vaccand Stipends he gave Bond to pay to them 850. pounds therefore and being thereafter Charged by Mr. Iohn Wilkie Collector of the vaccand Stipends Kelburn payed him 600. merks whereupon Mr. Iohn gave Kelburn his Discharge of these vaccand Stipends and of his Bond to tâ—e Presbyterie with absolute Warrandice of the Discharge especially bearing to relieve and free him of the Bond to the Presbyterie thereafter Kelburn was Decerned to make payment of that Bond after a long Debate Mr. Iohn Wilkie compeared whereupon Kelburn Charged Mr. Iohn to pay him the 850. pounds with Annualrent and Expencesâ— upon the Clause of Warrandice Mr. Iohn Suspends on these Reasons First That he was Circumveened never having read the Discharge 2dly That Clauses of Warrandice however conceived are never extended further by the Lords then to the Skaith and Damnage of the Party Warranted which if it be Componed for never so little the Warrandice reacheth no further then the Composition and it can never be extended ad captandum lucrum ex alterius damno so Kelburn having gotten Stipend worth 850. pounds he cannot seek the same back again but only the 400. pound he payed out It was answered that albeit general Clauses of Warrandice be so Interpret yet this is an express and special â—action to relieve Kelburn of this Bond which if it had been per se would have been valide although without an onerous Cause and cannot be lesse valide having so much of an onerous Cause The Lords did take no notice of the Reason of Circumvention Mr. Iohn being known to be a provident Person but Restricted the Warrandice to the 400. pounds received by the Suspender and Annualrents thereof and the Expences of Plea against the Presbyterie and found it no ways alike as if it had been a Paction apart but being a speciality in a Clause of Warrandice it was to be Interpret accordingly pro damno interesse only Lady Braid contra Earl of Kinghorne Eodem die THere is a Bond 10000. pounds granted to the Earl of Buchan Principal and the Earl of Kinghorne Cautioner to
umquhil Moâ—ison of Darsie and Dam Nicolas Bruce now Lady Braid then his Spouse bearing Annualrent and a Clause stating the Principal Sum after ilk Term as a Stock to bear Annualrent and Termly Penalties in case of failzie This being called in praesentia It was alleadged for Kinghorne that Annual of Annual was a most Usurary Paction rejected by all Law and our Custom and cannot subsist in whatever Terms it be conceived otherwise by the like Paction the Annual of that Annual might bear Annual and so perpetually multiply and if this were Sustained there would never be a Bond hereafter in other Terms It was answered that Bonds of Corroboration stating Annualrents into Principals by Accumulation have ever been allowed and though that be done after the Annualrent is become due making it then to bear Annualrent there is no material difference to make it bear Annualrent by a paction ab ante but not to take Effect till the Annualrent be effectually due It was answered that Custom had allowed the stating of Annualrents after they were due into a Principal because then being presently due they might instantly be Exacted but Law and Custom hath rejected the other Case The Pursuer further alleadged that she being a Widow and this her Liveliehood Annualrent at least should be due for the Annualrents seing she is ready to Depone that she borrowed money to live upon and payed Annualrent therefore or otherwise the Termly Failzies ought to be Sustained The Lords Sustained the Defense and found no Annualrent due of the Annual nor Termly Failzies seing there was no Charge at the Pursuers Instance against this Defender and that he was a Cautioner but modified for all 100. pound of Expences Bell of Belfoord contra L. Rutherfoord Ianuary 27. 1669. BEll of Belfoord being Infeft in an Annualrent by the Deceast Lord Rutherfoord out of certain Lands pursues a poinding of the ground Compearance is made for my Lady Rutherfoord who alleadged she ought to be preferred as being Infeft in an Annualrent of 2000. merks yearly upon her Contract of Marriage before this Pursuer 2dly That she ought to be preferred for an Annualrent of 2000. merks yearly of additional Joynture wherein she stands also Infeft publickly and albeit her Infeftment be posterior to the Pursuers yet his Infeftment being base not cled with Possession before her publick Infeftment she is preferable The Pursuer answered that before the Ladies Infeftment on her additional Jointure he had used a Citation for poinding of the Ground and is now Insisting for a Decreet thereupon which must be drawn back to the Citation and is sufficient to validat the base Infeftment that it be no more from that time forth repute Clandestine Which alleadgance the Lords found Relevant and preferred the Pursuer to the Ladies additional Jointure It was further alleadged for the Lady that she was Served and kenned to a Terce of the Lands in question and must be preferred as to a third part of the profits of the Lands conform to her Infeftment upon her Terce The Pursuer answered that her Service Kenning and Infeftment of Terce are posteriour to his Infeftment of Annualrent and posterior to his Citation foresaid thereupon It was answered for the Lady that her Terce being a Right Constitute by Law by the Death of her Husband albeit it be Served and Kenned after these Acts are but Declaratory of her Right by her Husbands Death and do Constitute her Right not from the date of the Service but from her Husbands Death which is before the Pursuers Citation so that his Infeftment granted by her Husband before his Death not having been cled with Possession in the Husbands Life it remained at his Death as an incompleat Right which cannot exclude her from her Terce It was answered that a base Infeftment is of it self a valid Right although by a special Act of Parliament posterior publick Infeftments are preferred thereto unless the base Infeftment hath been cled with Possession which cannot be extended beyond the Terms of the Act of Parliament and so cannot be extended to a Terce but as the base Infeftment would have been a sufficient Right against the Husband and his Heirs so it must be esteemed as debitum reale affecting the Ground and his Lady can have no more by her Terce then the third of what was free unaffected before his Death The Lords found the base Infeftment sufficient to exclude the Terce pro tanto and that as to the Husbands Heir or Relict it was a sufficient Right Stirling contra Heriot Eodem die Stirling Son to Commissar Stirling pursues for a modification of an Aliment out of the Liferent of Helen Heriot his Fathers Wife as having the Liferent of the whole Estate The Lords Sustained not the Aliment in respect the Defenders Liferent was very mean and the Pursuer was major and keeped a Brewary and she kept one of his Children and that he was not frugi aut bonae famae Robert Brown contra Iohnstoun of Clacherie February 1. 1669. RObert Brown pursues Iohnstoun of Clacherie for payment of 1200. pounds contained in a Bill of Exchange subscribed before two subscribing Witnesses and marked with Clacheries hand there was several other Bills for greater Sums produced marked with the like mark and none compearing for Clacherie The Lords caused Examine the Witnesses insert who Deponed that Clacherie was accustomed so to Subscribe and one of them Deponed that he saw him put to this mark to the Bill in question several others Deponed that they had accepted such Bills in regard of his Custom and had obtained payment from him without any Debate thereupon The question arose to the Lords whether a Sum above an hundred pound could be proven by such a Writ that had only a mark and having demured upon it before till they should try if any such case had been Sustained formerly and none having been found Sustaining any Writ not being Subscribed with the whole Name or at least the Initial Letters of the Debitors whole Name It was offered by some that Clacheries Oath might be taken ex officio or de calumniâ— not simply to refer the Debt to his Oath but whether that truly he set to this mark before these Witnesses but Robert Brown being a dying the Lords would not defer but decided the Case and found that this Writ being a Bill of Exchange among Merchants and Clacheries custom so to grant Bills of greater importance then this being clearly proven and none appearing for him they decerned against him upon the Bill and Testimonies many of the Lords being of different Judgement and that it was of dangerous preparative to encourage Forgerie but it was Sustained only in all the particular Circumstances aforesaid and not to be a general Rule Iohn Boswel contra Town of Kirkaldie Eodem die THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of Iuly 1668. of the Process against them and having objected against that
Article of the Libel whereby Iohn Bosewel craved Repetition of what he was stented for for Charges of Commissions to the Convention of Burrows upon this Ground that the Convention of Burrows was authorized by Acts of Parliament and Commissioners is ordained to meet yearly thereat which being a burden arising from the Authority of Parliament these who have Tenements in the Town or Lands in the Burghs Lands are lyable pro rata and did again resume the Debate anent the second Ministers Stipend and being heard thereupon in presentia The Lords adhered to their former Interlocutor anent the Teinds and found nothing could make Iohn Bosewel lyable for any part of the second Ministers Stipend except what was due by Law out of his Teinds or what was due by his own consent or by custom of 40. years and found him not lyable for Charges of Commissioners of Burrows which though authorized by Parliament yet the intent thereof was Trading and though the Convention might equalise the proportion of Taxations amongst Burghs which did concern all having Land therein Yet that being a case meerly contingent they would not upon consideration thereof put any part of the burden upon these who had no Trade Iohn Boswel contra Lindsay of Wormistoun February 3. 1669. John Bosewel being appointed Commissar of St. Andrews by the King and before the Restitution of Bishops after their Restitution the Arch-bishop named Lindsay of Wormistoun Commissar and agreed him and Iohn Bosewel on these Terms that Iohn should have the half of the profit of the place whereupon Wormistoun grants a Bond to Iohn Bosewel to Compt and Reckon for the Profits of the half and to pay the same to Iohn Bosewel termly and quarterly and if any question should arise betwixt them in the Accompt that he should submit himself to the Arch-bishops determination and acquiesce therein Iohn Bosewel Charges upon his Bond. Wormistoun Suspends It was alleadged for Wormistoun that his Bond did contain a Submission to the Arch-bishop who is thereby the only Judge Constitute in these Accompts It was answered that this Bond was only Subscribed by Wormistoun himself and a Submission must be Subscribed by both Parties and that it behoved to be understood to last but for a year and not to import a Liferent Submission neither could it be exclusive of the Lords to decline their Authority The Suspender answered that this Submission being a provision in the Bond Charged on Which Bond being accepted by the Charger his acceptance makes his consent to the Submission in the same way as if he had Subscribed the same And there is no Law to exclude a Submission for two years or a Lifetime more then for one and it is not a declining of the Lords Jurisdiction it being most ordinarly sustained no Process because there is a Submission standing The Lords found that there is here a Submission not ending by a year and accepted by the Charger and that thereby the Arch-bishop in the first place ought to give his Sentence which if he refused or if it was iniquous the Lords would cognosce thereupon as in the case of other Arbiters and Assigned therefore to the Arch-bishop the first of Iune to determine thereupon Kilburnie contra Heirs of Tailzie of Kilburnie Eodem die THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie Dispute the 20. of Ianuary and according to the Interlocutor then given gave in a condescendence of Kilburnies Debt amounting to fifty one thousand pound and that the Rent of the Land did not exceed thirty six hundred merks It was alleadged that the Annualrents were here accumulate for five years after Kilburnies Death which ought not to be the Lady having Possession of the Lands and ought to have payed the Annualrent and the Clause impowering her to Sell is only for satisfying Kilburnies Debt due the time of his Death which cannot extend to Annualrents due after his Death and that these Annualrents were truly payed by the Lady and so could not come in as a Debt upon the Estate 2dly The Moveable Debts ought to be satisfied by the Executory which must first be Exhausted the Lady her self being Executrix and so cannot burden the Heirs of Tailzie or the Estate for if they had been Distrest they could have craved payment from her quoad vires inventarij so that the principal Sums not extending to 40000. Pounds and the Lands being Bought by Greinock at the Rental of 4000. Merks and 20000. Merks being gotten more for the Lands then the Debt the power of Selling granted to the Lady in the Disposition can never extend to so vast a difference albeit a small difference of the price would not be noticed and lastly it was offered to find a Party who would take a Wodset of the Lands in satisfaction of all the Defuncts Debts so that the Lady cannot in prejudice of the Heirs of Tailzie Sell where Wodsetting may do the turn and the Wodset should contain a Reversion and no Requisition and whereas it might be pretended that the matter was not intire because the Lands were actually Sold to Greinock he offered to Consent and Renunce his Bargain It was answered that this Clause de non alienando being against the nature of Property was odious and not to be extended and the faculty of Selling or affecting being suitable to the nature of Property was favourable and not to be restricted further then the Defuncts own Words and Termes who having given full power to his Daughter to Sell or affect the Lands named for payment of his Debts and not having said to Sell or burden so much of the Land as were equivalent to the Debt neither having said so much of the Debt as exceeded his Moveables or his Moveables being first exhausted it is most rational and to be presumed to be his meaning that as to his Moveables he did not burden her at all and that this part of his Lands he set apart for his Debt for he understood his Debt to be about the value of it otherwise he could have set apart less Land or could have more limited the Faculty 〈◊〉 Disposing but the principal Sums of this Debt being 40000. Pounds and the Rental not being pretended to have been above 4000. Merks the principal would amount to the value of the Land at 15. years Purchase and there being unquestionably a latitude to the Feear to Sell at such a Price as in discretion he thought fit though he had sold at twelve years purchase or not under the lowest Rate of Land neither could the Buyer be quarrelled nor the Seller as incurring the Clause irritant and therefore the Lady having Sold at a far greater Rate then the ordinar Greinock and the Town of Glasgow being both dealling for the Land they to make a Harbour there and he not to suffer them in prejudice of his Town and Harbour in Greinock there is no reason to exclude the Lady from the benefit of her
Bargain or to necessitat her to quite the same and give only a Wodset seing the Clause gives her power both to Sell and Affect and does not limit her to either of them The Lords Repelled the Defenses aâ—d declared that the Lady had warrantably Sold these Lands and that the principal Sums being so considerable although the Rental had been more they were sufficient and found that the Clause laid no necessity upon her to exhaust the Moveables and that she might thereby Wodset or Sell at her pleasure Iames Deanes contra Alexander Bothwel February 5. 1669. ALexander Bothwel of Glencorsse being conveened before the Commissars of Edinburgh for Slandering Iames Deanes Procurator before the Commissars in calling him a false knave publickly in the Parliament House and at the Crosse the samine being proven by Witnesses he was Decerned to stand at the Kirk Door of Glencorsse where both Parties dwelt and acknowledge his Fault and to pay 100. pound to the Poor and 100. pound to the Party Bothwel Suspends on these Reasons first That the Commissars could not ordain him to stand at an Congregation which is an Ecclesiastical Censure 2dly That they could not also Fyne him to the Poor nor Decern any thing to the Party but the Expences of Plae seing there was no other Damnage Lybelled nor proven 3dly That the Witnesses were not habile being the Pursuers own Servants The Charger opponed the Decreet wherein the Suspender was compearing and objected nothing against the hability of the Witnesses then and therefore cannot now quarrel their Testimonies and that it was most proper for the Commissars to cognosce upon Slander or Defamation neither was his standing in order to Repentance but in order to restoring the party to his Fame The Lords Repelled the Reasons and Sustained the Decreet in all Points Cleiland contra Stevinson Eodem die William Cleiland Charges Iohn Stevinson upon a Bond of 400. Merks bearing Annualrent he Suspends on this Reason that the Charger was owing him more for Victual being his Tennent which was now liquidat before this time but after the Date of this Bond and craved compensation thereupon not only from the Date of the liquidation but from the time the Victualrent was due Which the Lords Sustained Rule contra Rule February 6. 1669. MArgaret Rule having made a Consignation of certain Bonds and in general of all other Rights with a Disposition of all her Goods to Umquhile Robert Rule her Brother who having named Mr. David Rule his Executor and universal Legator did upon his Death-bed acknowledge that his Sisters Disposition was in trust to her own behove granted upon that consideration that she being a Bastard unless she Disponed in her leige poustie her Means would be Confiscat by her Bastardy she thereupon pursues the said Mr. David Rule to deliver back her Assignation with her own Writs The Defender alleadged the Lybel was no way Relevant there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Death-bed and that offered to be proven by Witnesses only but First The Trust behoved to be declared by a Declarator and not thus by an Exhibition 2dly Trust is only probabable scripto vel juramento being a matter of so great importance 3dly Some of the Rights Assigned and Disponed are Heretable and nothing done upon Death-bed can prejudge the Defuncts Heir thereof 4thly An extrajudicial Confession without Writ albeit it were acknowledged hath no effect for it cannot be known quo animo such words might have been exprest The Pursuer answered that the Trust might be very well Lybelled with the Exhibition and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir yet it may very well stand as an evidence of Trust which cannot be astricted to probation by Witnesses but hath ever been found probable by other evidences especially where the Person trusted is Dead and the Pursuer condescends upon these evidences and adminicles of Trust. First Communis fama 2dly The Assignation and Disposition bears no Reservation of the Disponers Liferent and yet she continued still in Possession and her Brother whom she Entrusted never medled which he would not have done if the Disposition had been for a Cause Onerous or to his own behove 3dly He did solemnly in presence of Witnesses above exception acknowledge the Trust on his Death-bed The Lords Sustained the Summons and would not astrict the Pursuer to prove by Write or Oath of Party but ordained Witnesses to be Examined ex officio anent the evidences and adminicles condescended on by the Pursuer Black contra Dawid French February 9. 1669. THe Lands of Miln-burn being holden Waird of the Dutchess of Hamiltoun after Miln burns Death the Duke and Dutchess grants a Gift of the Waird to Mr. â—oâ—ert Black who pursued for Mails and Duties and likewise David French having Appryzed from Miln burn and having Charged the Dutchess before Miln-burns Death to Receive him he pursues the Tennents for Mails and Duties who Suspend upon double Poynding In the Competition it was alleadged for the Appryzer First That his Appryzing being a Judicial Sentence did Denude Miln-burn the Vassal in the same way as if Miln-burn had Resigned in the Dukes Hands in favours of David French after which Miln burn was totally Divested and no Casualty could befall to the Superior by his Death Ita est that Law hath stated a Decreet of Appryzing in the same Case as an Resignation accepted for though the Vassal against whom the Appryzing was led should Die the Appryzer will summarly upon a Charge obtain himself Infeft so that the former Vassal was totally Denuded 2dly Here not only there is Appryzing but a Charge against the Superior which fictione juris is in all points as if the Appryzer were actually Infeft and therefore the Appryzer who first Charges albeit he inâ—iâ—t not to use any further Diligence is ever preferred to all other Appryzers Infeft after It was answered for Black the Donator that he ought to be preferred because the Superior who gave his Giâ—t could not want a Vassal nor loss the Casualty of his Superiority without his own fault but the Appryzer did not become Vassal neither by the Appryzing nor by the Charge nor was it ever found that the Liferent or Waird of an Appryzer fell unless he had been actually Infeft and it would be of very great disadvantage to Creditors if the naked Charge should make their VVaird to fall which they may pass from at their pleasure therefore seing the Appryzer could not be Vassal the former Vassal behoved to remain Vassal and seing the Superior could not have a Waird by the Appryzers Death he behoved to have it by the former Vassels Death and albeit the Charge be â—qulparat to an Infeftment as to the Competition of Appryzers whom the Superior may not prefer but according to their Diligences yet it is not holden as an Infeftment to any other Case for thereupon the Appryzer cannot remove the
The Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and
the Heir and not to their personal Creditors The Lords ordained the Witnesses to be Examined to remain in retentis concerning my Lord Cowpers condition the time of Subscribing the Disposition and of his coming abroad and allowed my Lady also Witnesses if she pleased for proving what his condition was at these times reserving all the Defenses and Alleadgances of either Party in the Cause for they found that the Creditors of Balmerino as appearand Heir had interest to Declare that their Debts might by legal Diligences affect the Estate of Cowper unprejudged by this Disposition as being made by Cowper on Death-bed and that the Reduction in so far as might contain such a Declarator would be Sustained for no Party can be hindered to Declare any point of Right competent to them and it was also thought that though there were many Witnesses called to find out who truely knew the Defuncts condition yet there might be few who truly knew the same and these might be removed out of the way either by Death or by Collusion Alexander Hamiltoun contra Harper Eodem die UMquhil Iohn Hamiltoun Apothecarie having purchased a Tenement in Edinburgh to himself in Liferent and his Son Alexander in Fee thereafter he borrowed 1000. merks from Thomas Harper and gave him a Tack of a Shop in the Tenement for the Annualrent of the Money After his Death Alexander his Son used a Warning by Chalking of the Doors by an Officer in the ordinary Form and he being Removed Alexander pursues now for the Mails and Duties of the Shop from his Fathers Death till the Defenders Removal who alleadged Absolviture because he bruiked the Tenement by vertue of his Tack bona fide possessor facit fructus perceptos suos It was answered that the Tack being but granted by a Liferenter could not Defend after the Liferenters Death and could not be so much as a colourable Title of his Possession 2dly That he could not pretend bona fidesâ— because he was Interrupted by the Warning It was answered by the Defender that the Tack was not set to him by Iohn Hamiltoun as Liferenter nor did he know but he was Feear being commonly so repute neither could the Warning put him in mala fideâ— because there was no Intimation made thereof to him either Personally or at his Dwelling-house but only a Chalking of the Shop-door The Lords Sustained the Defense and Duply and found him free of any Mails or Duties till Intimation or Citation upon the Pursuers Right here the Pursuer did not alleadge that the Warning by Chalking of the Shop-door came to the Defenders knowledge as done by the Pursue Sarah Cockburn and Mr. Patrick Gillespie contra Iohn Stewart and the Tennents of Lintone February 18. 1669. SArah Cockbâ—rn being Infeft in Liferent in an Annualrent of 1200. merks yearly out of the Barony of Lintone She and Mr. Patrick Gillespie her Husband insisting for her Annualrent in Anno 1657. obtained payment from Iohn Stewart and gave him a power to uplift the same from the Tennents and delivered to him the Letters of Poinding to be put in Execution Thereafter Mr. Patrick obtained a second Decreet against some Wodsetters whose Rights were posterior to the Annualrent for the years 1658 1659 and 1660. and upon payment of these three years did acknowledge payment made of the saids three years Annualrent and all bygones whereunto he had Right Mr. Patrick having granted Iohn Stewart a Bond to warrand him anent the year 1657. and that he had given no Discharges that might exclude him The Tennents of Lintoun Suspends the Charge for the year 1657. upon that Reason that Mr. Patrick had Discharged the Annualrent for the years 1658 1659 1660. and all preceeding whereunto he had right Whereupon Iohn Stewart Charged M. Patrick upon his Bond of Warrandice who Suspended upon this Reason that the Discharge could not exclude John Stewart albeit it bare all preceedings to which he had Right because when he granted the Discharge he had no right to the year 1657. which he had received from John Stewart and given him Warrand and his Letters to Poind for Mr. Johns Stewarts own use It was answered that unless that Order had been intimat the Right remained with Mr. Patrick and so his general Discharge extended thereto It was answered that albeit Intimation was necessar as to establish the Right in the Assigneys Person yet Mr. Patricks Warrand was sufficient to exclude him at least the matter of his Right being thereby dubious the general Discharge cannot be effectual against him if by the Oaths of the Wodsetters that got the Discharge it appeared that they paid him not the year 1657. and some of their Oaths being taken he who paid the Mony for himself and the rest Dâ—poned that the year 1657. was not paid and that there was no Decreet against the Wodsetters for 1657. but only against the Moveable Tennents to whom the Discharge containing the said general Clause was not granted The Lords found that in respect of the Oath the general Discharge extended not to the year 1657. and therefore Suspended the Letters against the said Mr. Patrick upon his Bond of Warrandice and found the Letters orderly proceeded at Iohn Stewarts Instance against the moveable Tennents of Lintoun for the year 1657. The Tennents further alleadged that since the year 1660. they did produce three Consecutive Discharges from Mr. Patrick which imports a Liberation of all years preceeding specially seing Mr. Patrick was never denuded of the year 1657. nor no Intimation made It was answered that such a Liberation is but presumptive presumptione juris and admits contrary Probation and is sufficiently taken away by the Oath of the Party acknowledging that year unpaidâ— and the Warrand given to Iohn Stewart to lift it for his own use before these Discharges The Lords Repelled also this Defense upon the three Discharges in respect of the Reply Trinch contra Watson Eodem die John Watson being Curator to Margaret Trinch and having Contracted her in Marriage with his own Sister Son there is a Disposition granted by her to the said Iohn Watson of all her Means and in the Contract he Contracts with her 1000. pounds whereunto the Heirs of the Marriage are to succeed and failing these to return to the said Iohn himself she died before the Marriage and David Trinch Stationer being Served Heir to her raises Reduction of the Disposition and Substitution in the Contract of Marriage upon two Reasons First That albeit the Disposition contain Sums of Money yet being of the same date with the Contract of Marriage in which Iohn Watson Contracts 1000. pound with the said Margaret Trinch which unquestionably has been all that has been gotten for the Disposition the said Disposition is a part of the Agreement in relation to the Marriage and must be understood as granted in Contemplation of the Marriage as if it had been Contracted in the Contract of Marriage so that the Marriage not having
followed 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
them off from some Merchant and therefore payment should not be made to such Persons till they produce the Merchants Accompt and his Discharge or if it be and if these Persons interposed pay not the Merchant as in this case the loss must not be to the Merchant but to these who payed to the interposed Persons upon their hazard and if this were not all Merchants would be ruined for no Persons of quality do immediatly take off from the Merchants themselves The Lords found that these Articles in the Accompt in relation to the Petticoat and the 114. pounds which were known by the Defender or his Lady to be taken off in their Name and put in Andrew Bruce his Book were due by them and that though the same had been paid to Margaret Sinclar it was upon the Defenders peril if she paid not the Merchant They did also find that the Goods being acknowledged to be converted to the Defenders use they were lyable to the Pursuer in so far as they proved not they paid Margaret Sinclar and found the same probable by Margarets Writ or by Witnesses but found not that Ground Relevant that Margaret Sinclar was intrusted generally to take off Ware or that the Grounds alleadged did instruct a particular Warrand to take off from the Pursuer and therefore did not find the payment made to Margaret Sinclar which she failed to pay the Merchant to be upon the Defenders peril except as to the two parcels of Accompt aforesaid which the Defenders knew to be in their Name in the Pursuers Book Countess of Dundee contra Straitâ—un February 24. 1669. THe Countess of Dundee as Donatrix to her Husbands Escheat pursues Straitoun for a Sum due to her Husband The Defender alleadged absolvitor because that same day this Bond was granted by him to the Earl a Creditor of the Earls arrested to whom the Defender had made payment and obtained his Assignation and therefore as Assigney craves compensation and preference as Arrester It was answered that this Debt being contracted by the late Earl after he was Rebel it cannot burden his Escheat in prejudice of the King and his Donator for though Creditors whose Debts were due before Rebellion arresting after Rebellion may be preferred yet no Debt contracted by the Rebel after Rebellion can burden his Escheat neither by arrestment nor compensation Which the Lords found Relevant and preferred the Donatrix except as to what was due to the Defender by herself or for Drogs to her Husband which she was content to allow The Earl of Kincardin contra The Laird of Rosyth Eodem die THe Earl of Kincardin pursues the Laird of Rosyth for the Teinds of his Lands to which the Pursuer has Right The Defender alleadged that he had obtained a Decreet of the high Commission for Plantations against the Earl whereby they Decerned the Earl to Sell and Dispone these Teinds for a price mentioned in the Decreet being about nine years Purchase thereof and therefore the Pursuer cannot have Right to the Teinds themselves but only to the Annualrent of that Sum which was the price The Pursuer answered that he opponed the Decreet produced which did not de presenti adjudge the Teinds to the Defender but Decerned the Pursuer to sell them to him upon payment of the said price which can give no Right to the Teinds till the price be payed or at least offered which was never done The Lords Repelled the Defense in respect of the Reply The Earl of Annandail contra Young and other Creditors of Humeâ— Eodem die THe Earl of Annandail having obtained Assignation from Iohn Ioussie to a Sum of Money due by the Earl of Hume whereupon Inhibition was used Anno. 1634. and shortly thereafter an Appryzing upon which Aunandail was lately infeft whereupon he now pursues Reduction of the Infeftment granted by the Earl of Hume to Young as being after his Inhibition which Inhibition being auterior to the most part of the Debs Wodsets and Apprizings of the Estate of Hume and being supposed to be the leading Case that the Decision thereon might rule all the rest many of the Creditors did concur with Young and produced their Interests and craved to see the Process It was answered that they had no Interest in Youngs Right and so could not crave a sight of the Process It was replyed that albeit the Sentence against Young could not directly operate against them yet indirectly it would as being a Dicision and Practique in the like case The Lords found this no Interest to stop Process but allowed any Creditors that pleased to concur in the Dispute It was then alleadged Absolvitor because this Assignation Inhibition and Apprizing albeit standing in the Person of the Earl of Annandail yet it was truely on Trust to the behove of the Earl of Hume and if to his behove it did accresce to the Defenders as having Right from him and for evidence of the Trust they condescended upon these grounds First That the Debt was contracted 35. years since and no Diligence ever used thereupon till now except an Apprizing whereupon no Infeftment was taken till of late albeit Infeftments were taken of the Estate of Hume upon many posterior Apprizings which are now expired and will exclude this Apprizing 2dly The Assignation granted by Iousie to Annandails Father was immediatly after the Lands of Dunglasse was Sold by the Earl of Hume to the Laird of Dunglass by whom Ioussie was payed as a part of the price by Sir William Gray who was then Debitor to Dunglasse likeas Ioussies Oath being taken ex officio upon his Death-bed Depones that Sir William Gray payed him the Money albeit he knew not by whose Means or to whose use yet he knew nothing of any payment made by the Earl of Annandails Fatherâ— 3dly This Inhibition and Apprizing was never in Annandails or his Fathers Possession but still in the Possession of the Earl of Hume and his Agents and still in his Charter Chist 4dly The Earl of Annandail took a Security from the Earl of Hume for all Sums due to him or for which he was Cautioner wherein there is neither mention nor reservation of this Sum or Apprizing 5thly The Earl of Annandail has consented to many of the Creditors Rights which he would never have done if this Apprizing had been to his own behove thereby preferring others to himself the Creditors therefore craved Witnesses to be Examined ex officio upon all these points for clearing of the Trust which being an obscure contrivance can be no otherwise probable all the Actors being now Dead and is most favourable in the behalf of Creditors who if this pursute take effect will be utterly excluded for if the Inhibition Reduce their Rights the Pursuers Apprizing supervenient upon that same Sum is now expired and irredeemable The Pursuer answered he did declare he would make only use of this Right for satisfaction of the Debts due to him and for which he was
was no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
whom he had entrusted them had carried them away but there being produced in the Process attested doubles of the former Dispositions under the hands of Nottars The Pursuer craved that seing the Witnesses alleadged insert might die and the Captain of purpose keeped up the Principals that the Witnesses might be Examined upon what they know of the Truth or Forgery of the saids Dispositions Which the Lords granted the Fame and suspition of the Forgery being so great though ordinarly they do not Examine Witnesses upon the Forgery of a Writ till the principal be produced that the Witnesses may see their Subscriptions whereupon Steel one of the Witnesses compeared and Deponed acknowledging the Forgery and the way of contrivance of it in which the Captain made use of him whereupon the Lords proceeded to Examine the Tutor who stifly stood to the verity of the Dispositions as being truly Subscribed by him but differed in the Date and in the persons who were Witnesses to the Subscription The Captains Son in law being also Examined whether or not the Captain had employed him to corrupt the Witnesses and if he had written any Letter to him to that purpose produced a Letter mentioning some things by word which he should diligently go about and being asked who the Bearer was Deponed that he was Robert Ogilvy the Tutors Servant who being in the House and presently called to the Bar upon Oath being interrogat whether he had brought North any Letter from the Captain to his Good-son Deponed that he had brought no Letter from him to his Good-son or any other and thereafter the Letter being showen him and confronted with the Captains Good-son he Deponed that he did bring that Paper and delivered it to the Captains Wife but he thought it was an order not being Sealed and being interrogat whether he had any Message in word from the Captain to his Good-son Deponed he had none and upon reading of the Letter bearing the contrair and confronting with the Captains Good-son he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh and the Captains Good-son further acknowledged that Ogilvy had desired him to deall with the Witnesses to stand to the Truth of the Writs he stifly denyed that point The Lords having considered his grosse Prevarication and contradictory Oath ordained him to be put in the Irons and the next day to stand in the Pillary betwixt ten and twelve and a Paper on his Brow to declare the Cause and did declare him infamous and appointed him to continue in Prison till further Order Mr. William Kintor contra the Heirs and Successors of Logan of Coat-field Iuly 9. 1669. LOgan of Coat-field having become Cautioner for the Tutor of Burncastle an Inhibition used upon the act of Caution Mr. William Kintor having Right by Progress from Burncastle obtained Decreet against the Representatives of the Tutor and of Coat-field the Cautioner for payment of the Annualrent of 10000 pounds due to the Pupil by the Marquess of Hamiltoun and the like Sum due by the Earl of Bucclengh in respect that the Tutor was obliged to have uplifted these Annualrents and to have employed them for Annualrent and thereupon pursues a Reduction of the Rights granted by the Tutors Cautioner as being granted after the Cautioner was Inhibited these Acquirers raise a Reduction of Mr. Williams Decreet and repeat the Reasons by way of Defense alleadging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquess of Hamiltoun and Earl of Buccleugh because they were in responsal Hands and the Pupil had no Damnage for it was free for the Tutor to uplift the Annualrents of Pupils Money when secure at any time during the Pupillarity but here they offer to prove the Tutor Died durante tutela and so was not lyable when he Died to uplift these secure Annualrents or to have employed them The Pursuer answered that the Lords had already found at the same Pursuers Instance against Iohn Boyd that the Tutor was lyable for Annualrent not only pro intromissis but pro omissis and for the Annualrent of the Pupils Annuals a finita tutela which is finished either by ending the Pupillarity or the Death or Removal of the Tutor It was answered that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil for that way of ending thereof could only been foreknowen by the Tutor that within the same he might lift the Pupils Annuals and give them out on Annualrent but he could not foresee his own Death but might justly think he had time before the expiring of his Tutory to lift and employ and so the Tutor not having failed in his Duty his Cautioner is free It was answered First That by the Lords dayly Practique Tutors are lyable for the Annualrents of Rents of and within a year after the Rents are due and there being so much parity of Reason in Annualrents it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory for albeit he might have keeped them in his Hands unemployed and only to leave them employed at the ish of his Tutory yet he was obliged to uplift them and if by any accident as being preveened by Death he did not employ them that accident should be on his peril not the innocent Pupils 2dly If need beis the Pursuer offers to prove the Annualrents were uplifted by the Tutor and so these that Represent him and his Cautioners are lyable for Annualrent therefore at least from the Death of the Tutor The Lords found that the Tutor was neither obliged to lift nor give out on Annual the Annualrents of his Pupil if the Debitors were Responsal but only once betwixt and the end of the Pupillarity and if he Died betwixt and the end of the Tutory he was free both of the Annual and Annualrents thereof but if he did actually uplift the Annalrents they found that it was sufficient to employ them any time before the Tutory ended and found that his Heir was lyable for Annualrent not from the Tutors Death but from the end of the Pupillarity and that he could be no further lyable then the Tutor if he had lived in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs and employ them This was stoped to be further heard Garner contra Colvin Iuly 10. 1669. JAmes Colvin having Apprized the Lands of Lady-kirk and some Tenements in Air and being Infeft therein Garners Wife and Bairns raise a Reduction and alleadge that the Apprizers Right is null as to the Tenements in Air because Iohn Garner had never Right thereto but the Right was Originally granted to young Iohn Garner the Pursuer by his Mother Brother The Defender answered that the said Right must be affected with his Apprizing as if it had been in the Fathers Person because
young Garner was then an Infant in his Fathers Family and albeit the Right be granted by his Uncle yet it is necessarly inferred to be Acquired by the Fathers Means because it bears not for Love and Favour but for Sums of Money and the Uncle had Bairns of his own It was answered that albeit the Right had been Acquired by the Fathers Means yet its anterior to the Apprizing and Sums on which it proceeds whereupon nothing can be taken away but what is posterior thereto albeit there were a Declarator and Reduction intented for that purpose as there is none The Lords Sustained the alleadgeance and Reduced the Apprizing as to these Tenements 2dly The Pursuer alleadges the Apprizing as to Lady-kirk must be Reduced because the Pursuers produce a prior Infeftment granted by Iohn Garner to his Wife in Liferent and his Bairns in Fee it was answered that the said Infeftment was base never cled with Possession The Pursuers Replyed that the Fathers Liferent not being Reserved the continuation of Possession was as lawful Administrator to the Pursuers Bairns and if need be 's its offered to be proven he had a Factory from them The Defender answered that a Fathers Possession being continued was never found to validate a base Infeftment granted to his Children albeit his Liferent were expresly Reserved but it s ever accounted a latent fraudulent Deed and a Factory can be of no more force then a Reservation otherwise it were impossible to obviat fraudulent conveyances betwixt Fathers and Children The Pursuer answered that albeit such Reservations are not valide in Rights freely granted by Fathers yet it meets not this case especially where there was an anterior Onerous Cause Iohn Garner being obliged by his Contract of Marriage that what Lands he should Acquire should be to his Wife in Liferent and to the Bairns of the Marriage The Lords found that the Bairns Infeftment granted by their Father albeit he had Possest by a Factory from them was not cled with Possession or sufficient to exclude a posterior publick Infeftment and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest Here it was not alleadged that the Factory was made publick by Process founded at the Fathers Instance or otherwise in this Process The Defender to satisfie the Production of an Assignation upon which the Apprizing proceeded which the Pursuers offered to improve as false in the Date and the Defender now produced another Assignation of the same Date and declared he abade by the same as of that Date and that it being a missing he had caused the Cedent to Subscribe another of the same Date with the first which did expresly bear Reservation of another Assignation formerly Subscribed which he did also bide be as truly Subscribed but not of the Date it bears but of the Date of the true Assignation insert therein The Lords Sustained the Assignation now last produced and did not quarrel the other Assignation though another Date was insert then when it was Subscribed for the Cause foresaid Alexander Glasse contra Iohn Haddin Eodem die ALexander Glasse and William Reid having a proper Wodset of the Lands of Alairtnenie and Iohn Haddin being also Infeft in an Annualrent forth thereof some days prior compet for the Maills and Duties Haddin alleadged that both infeftments being base from the same Author his Infeftment of Annualrent is preferable because prior and first cled with Possession It was answered any Possession he had was by a Factory from Glass It was replyed that he offered to prove Possession before that Factory It was duplyed that by Haddins back Bond produced bearing expresly that Glasse had had a valide Right to the Maills and Duties of the Lands and that he was in Possession thereof and that Haddin had accepted a Factory from him and was obliged to compt to him for the Maills and Duties without any Reservation of his own Right this was an unquestionable Homologation and acknowledgement of the Right and equivalent to a Ratification thereof The Lords found by the back Bond produced of the Tenor foresaid that Haddin had so far acknowledged Reid and Glasses Right that he could not quarrel it upon his own Right but he proponing that there was a Reservation of his own Right related to in the back Bond the Lords found the same Relevant he proving Possession before the other Party and before the Factory The Old Colledge of Aberdeen contra the Town of Aberdeen Iuly 13. 1669. THe Principal and the remanent Members of the old Colledge of Aberdeen having Set a Tack to Doctor Dun of his Teinds during the Principals Life and five years thereafter and bearing an Obligement to renew the like Tack from time to time for ever The Doctor Mortified the same to the Town for plous uses after the Death of that Principal many years The Colledge now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds and the Town Defends upon the foresaid Tack It was answered for the Colledge that the Tack is only for the Principals Life and five years after which is expired and as for the new Obligement to renew such Tacks for ever It was answered First Albeita Tack were conceived in these Terms it would be null as wanting an ish 2dly Obligements of the present Incumbents in Universities are not obligator but where there is an equivalent Cause Onerous Received for the good of the University It was replyed for the Town that an Obligement to grant a Tack by them who can grant it is equiparat to the Tack it self which requires no other solemnity as an obligement to grant an Assignation is equivalent to an Assignation and that there is here a Cause Onerous of the Universities Obligement because the Tack bears expresly 300. Merks of grassum and that the former Tack-duty was only ten Merks which by this Tack is made 50. Merks and albeit it want a desinit ish yet it must be valide for a Renovation during this Principals Life and five years after and it is Homologat by the Colledge who have received the same Duties several years since the first Tack expired It was duplyed for the Colledge that this Tack is not valide for any time after the first ish because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelats are prohibit for longer time nor their own Life and five years after and these Teinds are a part of the benefice Mortified to the Colledge and they must be accounted as beneficed Persons and albeit the Teinds were augmented to 50. Merks yet they are worth 200. Merks and for the Receipt of the Duties after the first Tack it is per tacitamrelocatiâ—nem and no Homologation of the Obligement to renew the Tack The Lords found that the Colledge was not comprehended under beneficed Persons but found that there was no sufficient Cause Onerous alleadged for this Obligement of Renewing
a perpetual Tack and would not Sustain the samine in part and found it totally null and that the Receiving of the former Duties was no Homologation thereof Captain Wood contra Boyneilson Eodem die CAptain Wood having taken a Ship of Norway whereof Boyneilson was Master called the Raphael Prize she was Adjudged by the Admiral and there is now Reduction intented of the Decreet of Adjudication in fortification whereof the Privateer Insists upon two grounds First That this Ship belongs to the Kings Enemies with a considerable part of the Loadning viz. 1500. Dails as is acknowledged by the Skippers Deposition 2dly Whereas she pretends to have been bound for London upon the Kings Proclamation giving liberty to all his Subjects to import Timber from Sweden and Denmark by the Ships and Mariners in these Countreys though then in Enimity yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England without going aside into an Enemies Countrey and requires the Lord Admirals Pass but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass but only to the Duke of Richmond's Pass as Admiral of Scotland whereas the Proclamation warrands only the Duke of York to give such Passes neither doth he produce now any Pass from the Duke or any extract of a Pass from him It was answered for the Strangers and for Iohn Dyson Citizen of London that they having Contracted conform to the Kings Proclamation for importing Timber and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize upon the Skippers Oath that they had Aboard 1500. Dails belonging to him and the Company First Because the Skipper is testis singularis 2dly By the constant Custom Sailers have Portage Dails allowed 3dly The number of the Dails is insert but with Figures and might easily have been altered after the Testimony from 500. by adding one and from 150. by adding a Cipher neither of which would have been sufficient to infer Confiscation 4thly Iohn Dyson Citizen of London having bona fide Contracted with the Stranger for importing 6000. Dails albeit the Skipper had foisted in some more it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject Contracting bona fide whatever it may infer as to the Strangers Ship and his own Dails As to the second point anent the wanting the Duke of Yorks Pass there is produced a Testificat of the Dukes Secretaries and the Ship having been Bought from the Privateer by Captain Lye who carried her to London the Duke gives her a Pass to return from London to Norway bearing that he had given her a former Pass to come into England there is also produced His Majesties Letter that he is sufficiently informed that this Ship is Authorized by a sufficient Pass and therefore ordering her to be Restored with Testificats from the Customers that Caution was found there and the Testimony of the Skipper and a Sea-man taken at London bearing that Captain Lye having Bought the Ship from a Privateer desired the Skipper then in Prison to show him the Duke of Yorks Pass which when he shew'd him he pulled it out of his Hand to secure the Ship against all which it was objected that all these were impetrat after the Ship was declared Prize and that it is the more suspitious that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass though the Duk of Richmonds Pass was rejected as not sufficient without the Duke of Yorks and that as yet there is no Extract of the Pass out of any Record and as for his Majesties Letter it hath been impetrat suppressa veritate and cannot take away a Parties privat Right but is salvo jure as are all Acts of Parliament done by His Majesty and three Estates incitata parte much more such a Letter as the Lords found in the case of the Castle of Riga and though there had been a Pass from the Duke of York it is likely not to have been of this Date but for a former Voyage The Lords found the alleadgeance for the Privateer that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails but not to Confiscat Iohn Dysons Dails His Majesties Subject who acted bona fide if he can make out a Pass and before answer to that point grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes and if therein there was a Pass for this Voyage and to send down the duplicat thereof compared with the Principal and Signed by Sir Robert and to try at the Records of the Custom-house if Caution was found there and if there was no Records of Passes to take the Oath of Captain Lye concerning the Pass alleadged taken by him and ordained the Members of the Court of Admirality to be Examined upon Oath whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears and found the Skippers Testimony alone to prove not only against himself but the Owners because he was entrusted by them in this Affair Duke Hamiltoun contra the Feuars of the Kings Property Iuly 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations having Charged the Feuars of the Kings Property for payment of this current Taxation several of them Suspended upon this Reason that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South in regard their Retours are higher then the rest of the Countrey and yet these of the Kings Property are Charged for the whole It was answered that that abatement cannot extend to the Feuars of the Property because in all former Taxations they were distinct both from the Temporality and Spirituality and therefore though by the Act of Convention the Temporality of these Shires be eased it will not extend to the Property especially seing the Reason of the Act cannot extend to them for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them and that Complaint of the high Retours of the Shires being then known these of the Property would doubtless endeavour to have easie Retours It was answered that the Act of Convention expresly Regulating the Taxation both as to the Spirituality and Temporality it cannot be thought but that these Members did comprehend the whole and seing the Property cannot be of the Spirituality it must be of the Temporality which hath the abatement as to these Shires without exception and albeit the Property was lately Retoured yet there being no Rule to estimate a Merk-land or Pound-lands Retour by or how many Pounds of real Rent makes a Pound of Retour there could be no other Rule but to make the Retour of the Property
proportional to the remainant Lands lying in that Shire so that where the other Lands are generally highly Retoured it is evidently presumed that the Property was so Retoured and seing the Property did of old pay no Taxation it were strange now to make it bear more then the other Temporal Lands about it The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires Earl of Marishal contra Leith of Whitehaugh Eodem die IEan Keith having a Right to a Wodset of the Mains and Miln of Troup and being Married to Iohn Forbes she Disponed the Heretable Right to his Brother which Right is now by progress in the Person of Leith of Whitehaugh Isobebs Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husbands Brother and now his Right and an Assignation to the said Process coming to the Earl of Marishal and by him to Lesmore they insist in their Reduction upon the Reason of Minority and Lesion It was alleadged for the Defender First No Process because prescription is past since the Right was granted by Isobel Keith which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new so that it signifies no more nor blank Paper or a blank Summonds till the Reasons be filled up and insisted in before which prescription was compleat 2dly Absolvitor because the Right granted by Isobel Keith to her Husbands Brother was to the Husbands behove Likeas there was a blank Bond granted by the Brother to the Husband so declaring and there being no other Contract of Marriage this Disposition must be understood as granted to the Husband in contemplation of the Marriage and being but the Right of 10000. Merks which was but a competent Tocher it was no Lesion to Dispone the same to the Husband or any to his behove and offered to prove by the Brothers Oath that there was such a back Bond and that yet there is a back Bond by him to whom the Brother Disponed The Pursuer answered to the first that interruption is sufficient by any Act whereby the Party having Right may follow the same so that Summonds albeit not legally Execute would yet make an interruption though no Sentence could follow thereupon and a Summonds being blank must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein but here the Lybelling of the Interest which is not with new Ink bears expresly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice which doth imply the Reason of Minority and Lesion To the second albeit the Disposition by the Wife had been to the Husband yet it is simply Reduceable upon Minority there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure in which case if the Provision had been suitable there would have been no Lesion and if not suitable the Lords might Reduce it in part or Rectifie it if done in the Wifes Life but here she having nothing from the Husband and being Dead she cannot now receive a Jointure and so the Right is Reduceable in totum especially seing the said Iohn Forbes did violently carry away the said Isobel Keith and Married her without her Friends Consents and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her 2dly There is not nor cannot be known any such back Bond and it were absurd that the Husbands Brothers Oath alone should prove the same in favours of his Brother The Defender answered that albeit there was no Jointure provided yet the Law provides a Terce which ofttimes is better nor the Jointure The Pursuer likewise answered that the Law did provide the jus mariti and the courtesie so that either Party ought either to acquiesce in the provision of Law or the Provision of Parties must be mutual The Lords Repelled the first Defense especially in respect of the manner of Libelling the Title and found not the Executions of the first Summonds to appear new and therefore Sustained them unless the Defender would improve the same they found also that alleadgeance that the Disposition was to the Husbands behove was not to be Sustained especially seing no back Bonds were produced or offered to be proven and that the manner of Probation offered was no way sufficient that there was no Provision for the Wife Duke Hamiltoun contra the Laird of Blackwood Eodem die THe Duke of Hamiltoun pursues the Laird of Blackwood that it may be declared that he is his Vassal in his Lands of Blackwood on this ground that the late Marquess of Hamiltoun having Disponed to the King the Abbacie of Arbroth did in consideration thereof in Anno 1636. get a Charter from the King of the Barony of Leshmahago a part of the Abbacie of Kelso of which the Lands of Blackwood were holden Waird which Lands having been Apprized and the Apprizers Infeft holden of the King the Laird of Blackwood having thereafter Disponed them to Major Ballantine by his Contract of Marriage with Blackwoods Daughter and the Major having purchased a Right from the Apprizers both upon Blackwoods procuratory of Resignation and the Apprizers he Resigned the Lands in the Marquess Hand and did take his Infeftment holding Waird of him likeas this Blackwood who is Heir of Provision to the Major as procreat by Marion Weir Blackwoods Daughter with William Lowry hath no other Right but as Heir of Provision to the Major and yet he hath taken Infeftment holding of the King likeas the said William Lowry his Father as lawful Administrator and taking burden for him has obliged himself by his Bond that so soon as the Marquess should obtain a Right to the Superiority he should take his Infeftment from him Waird and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expresly provided that any Right to the Superiority of Kirk Lands granted by the King yet notwithstanding the annexation shall be valide as to such Vassals who have or shall consent to the Rights of the Persons obtainers of the saids Superiorities so that Major Ballantine having consented by taking Infeftment in manner foresaid he and his Successors must continue the Dukes Vassals The Defender alleadged Absolvitor because any Right the Duke has or the Marquesse had to the Superiority is absolutely null by the saids Acts of Parliaments annexing the Superiority of Kirk Lands to the Crown so that unless there had been a Dissolution in Parliament no Right of these Superiorities is valide but null and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority Ita est there can be no Right but
of the subsequent Terms to the Debitor which they were in bona fide to do knowing no Law nor Custom to the contrare The Lords Repelled the Defense and found the Arrestment to be valide for that Terms Duty that was then running and found that the Arrestment was rather like to an Inhibition then an Apprizing which gave present payment Scot of Hartwood-mires contra November 6. 1669. SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in foroâ— which the Ordinar reported to the Lords the Reason of Suspension was that he being Conveened as Representing his Father to pay the Debt in question for which his Father was Cautioner he offered to prove payment denying alwise the passive Titles and having proven the most part payed by Discharges granted to the Principal Debitor he was Decerned for the rest and now offers to Renunce to be Heir to his Father conform to his Protestation in the first Act. It was answered that the Defense of payment does never suffer the proponer to deny the passive Titles or put the Pursuer to a necessity to prove them by the constant custom founded upon good Reason because the proponing upon any positive Right of the Defuncts is a behaviour as Heir and in the Act of â—iâ—is contestation a Term is only assigned to the Defender to prove payment and the Protestation in effect is rejected because there is no Term therein assigned to the Pursuer to prove the passive Titles in case the Defender failed to prove payment neither could there be any by our Custom The Lords refused the Suspension and found that the offer to prove payment Liberated the Pursuer from proving the passive Titles Lady Towy contra Captain Barclay November 9. 1669. THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds alleadged granted by the Umquhile Laird of Towy to Captain Barclay and of a Disposition of the Estate of Towy alleadged made by the Tutor of Towy the day after the Laird of Towy died at the Barns of Towy which Tutor fell Heir-male to the Laird who had only one Daughter the foresaid Bond and Disposition being produced Judicially before by Captain Barclay though not in this Process he refused now to produce the same but suffered Certification to be granted against it The question having arisen whether any further Process could be in the Improbation in respect that the principal Writs were not produced but Copies bearing the Tenor Date and Witnesâ—es insert The Lords the last Session did Examine Captain Barclay and Steel one of the Witnesses insert and certain others and Steel confessing the Forgery and Captain Barclay denying the same after he was Confronted with Steel and denying the having of the principal Writs the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh to be keeped there till the Event of the Plea or further Order and did thereafter permit Steel to come out upon sufficient Caution for a great Sum and the other Witnesses inserted being Sumonned and not Compearing The Lords granted Caption against them and gave Commission to certain Persons to search for them and now Iohn Rosse the other VVitness in the Disposition and Alexander Ferguson who filled up the Date and Witnesses both in the Disposition and Bond and Subscribed Witness to the Bond and insert himself as VVitness in the Disposition but Subscribed not as VVitness in the Disposition being brought to the Bar. It was alleadged for Captain Barclay that the saids VVitnesses could not be Examined First Because there was now no Process depending in respect that the Improbation which was only civilly intented was determined by the Decreet of Certification which now is Extracted and albeit the Lords did before Examine Captain Barclay and Steel yet the Process was then depending and the Certification not Extracted 2dly It was alleadged that Rosse and Fergusson were not habile VVitnesses having appeared most partial upon the Pursuers part having stayed a long time with her in her House Et prodiderunt Testimonia in so far as not only they had declared what they would depone but that they had set the samine under their hands and that by their said Subscription they acknowledged themselves accessory to the Forgery and so by their confession they are socij criminis and being culpable of so great a Crime are infamous and their Testimonies can make no Faith against any but themselves It was answered for the Pursuer that Improbations even civilly intented are not totally determined by the Certification which is of its own nature but an Interlocutor Sentence and if the Pursuer should notwithstanding thereof find out and produce the Principal Writ he might proceed to the Improving thereof it being very well consistent that it might be holden and repute false by the Certification and might also be proven to be false and though the Pursuer could not produce the Writ yet the Process is not wholly determined by the Certification but it may be justly desired that all evidences of the Forgery that were possible without production of the Writ might be taken to remain in retentis in case the Principal should after be found for there might be clandestine Assignations of the Writs made by Barclay and Intimat at the Pursuers Dwelling-house or Forged and Antedated Intimations made up so that the Certification would not be effectual against the Assigney's and though Parties should not insist the Kings Advocat who is also Pursuer of the Process might insist that the VVitnesses might be Examined for detecting of the Forgery and there could be no case more favourable then this wherein Captain Barclay had Judicially produced the VVrits and now wilfully refuses to produce the same and if Forgers shall escape and be in no more hazard but suffer Certification though they have burnt or wilfully keep up the VVrits it will be an open Door to encourage all Forgerers neither have the VVitnesses betrayed their Testimonies albeit being Examined by the Lord Fivy a Nobleman in the Countrey one of them did Subscribe who had just ground to think that it was no voluntar Deed but that the Lord Fivy might have sufficient Authority for that effect but whatever objections were against VVitnesses they are ever Received in Improbations and the Lords at Advising of the Cause do consider what their Testimonies may work at which time only it will be proper to object The Lords notwithstanding these alleadgeances Examined the VVitnesses Rosse acknowledged that he being Servant to Captain Barclay he called him up to Subscribe VVitness to a VVrit but told him not about what it was nor did not let him hear nor see what was written therein but rolled it up and presented only to him the white paper near about the end of the VVrit and desired him to Subscribe VVitness and he saying that he could not be VVitness because he saw no body Subscribe the Captain answered that that was nothing to him and that he should stand betwixt
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ— natâ— his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
Contract of Marriage and in a Bond of Provision relative thereto became oblieged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. merks at their age of 17. years reserving his own Liferent Elizabeth and Anna Boids the only Bairnes of the Marriage now after their Mothers Death and age of seventeen do with concourse of their Husbands pursue their Father to imploy the said sum of 20000. merks to himself in Liferent and them in Fee The Defender alleadged Absolvitor because the Pursuers can have no Interest in this Provision being expresly conceived in favours of the Bairns of the Marriage beside the Heir Itaest The Pursuers are the Heirs appearand of the Marriage there being no Sons and will succeed to the Estate by the Contract and so cannot demand the Provision made to the other Bairns for if there had been a Son of the Marriage only he could not have claimed this Clause and the Pursuers can be in no better Case than he It was answered that in Contracts of Marriage the meaning of the Parties is chiefly to be respected which has been that in case there were an Heir-male or Son of the Marriage this Sum should belong to the remanent Bairns and therefore it is conceived under the name of Heir in the singular number and being introduced in favours of the Daughters it ought not to be interpret against them but that they may renunce to be Heirs and be satisfied with this Provision only otherwise they may be absolutely excluded the Fathers Estate being apprized by Iohn Boid whose Legal is near to expire and who makes use of the Fathers Name without his Warrand It was answered that Law allows not in any Contract to make up new Clauses and seing the Provision is express in favours of the Bairns beside the Heir it can never quadrat to thir Pursuers who are the only Heirs The Lords found the Provision not to be extended to the Pursuers but because it was suggested that the Father did not propone it They desired the Ordinar to enquire whether the pursuit was for the Father and by his Warrand that then they might consider whether Iohn Boid the Appryzer could have interest to propone that alleadgeance Ker of Cavers and Scot of Golden-berrie Supplicants Eodem die KEr of Cavers and Scot of Golden-berrie being Arbitâ—ators nominat by a Submission did by Bill crave Warrand from the Lords to authorize them to summond Witnesses to compear and Depone before them in the Cause in which they were Arbiters Which the Lords granted Iean Ker contra Downie Ianuary 7. 1670. JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling She obtains Decreet against him therefore He Suspends on this Reason that within 48. hours after he took the House he did by Instrument give it over which is the ordinar custom of Burghs where there is no Writ to quite the Bargain within a short space unless some offer interveen medio tempore by which the Party is damnified The Charger answered that this House having been taken but fourteen days before the Term there is neither Law nor Custom allowing either Party to give over or resile there being then no competent time to set again For albeit Houses sometimes are given over when they are taken and quite before Warning time when the ordinar occasion of setting to others may occur yet that cannot be drawn to this case and the Instrument of over-giving was only by Downies Wife who shew no Warrand The Suspender answered that there was no difference whether the House was taken before warning time or after seing the Law gives locum penitentiae or some small time which must take place in either case 2dly Albeit the Charger had not been obliged to accept the over-giving yet de facto she has accepted it because it is offered to be proven that she set the House to another and took Earnest thereupon which did import that she quite the first Bargain seing at once she could not set it to two 3dly Albeit offer was made of the Keys at the Term yet it is offered to be proven that the House was not void but that the former Tennents Goods remained therein The Lords Repelled the first Reason of Suspension upon the over-giving but found that Member Relevant that the House being given over the same was set to another and earnest taken therupon but found that Point that the Tennents Goods who possessed formerly were not removed not Relevant in respect of the Custom in Edinburgh not to remove peremptorly at the Term. Mr. Laurence Charters contra Parochioners of Curry Ianuary 8. 1670. MR. Laurence Charters as Executor Confirmed to Mr. Iohn Charters Minister of Currie his Father pursues the Parochioners for 1000. Pound for the Melioration of the Manse of Currie conform to the Act of Parliament 1661. which is drawn back to the Rescinded Act of Parliament 1649. It was alleadged by the Parochioners Absolvitor First Because the Meliorations of the Manse were long before any of these Acts which do only relate to Meliorations to be made thereafter and for any thing done before adificium solo cedit and it must be presumed to be done by the Minister animo donandi there being no Law when he did it by which he could expect satisfaction 2dly Several of the Defenders are singular Successors and so are not lyable for Reparations done before they were Heretors The Pursuer answered that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament obliging the Heretors to make the Manses worth 1000. pounds if these former Reparations had not been made the Heretors of this Paroch would have been necessitate to make up the same and so in quantum sunt lucrati tenentur 2dly The saids Acts of Parliament contained two Points one is that whereas the intrant Minister payed to his Predecessor 500. merks for the Manse and his Executors were to receive the same from his Successor the saids Acts ordained the Heretors to free the Successor as to which the present Heretors can have no pretence and as to the alleadgeance that they are singular Successors the Acts oblige Heretors without distinction whether they are singular Successors or not The Lords found the Parochioners only lyable for the 500. merks payed by the Minister at his Entry and found that at the time of the Reparation the Parochioners not being lyable were not then lucrati and are not lyable by the subsequent Acts which extend not ad praeterita neither did they find the singular Successors lyable but that the Heretors for the time were only obliged Scot contra Murray Eodem die IN a Process betwixt Scot and Murray a Husband having granted a Tack of his Wifes Liferent Lands and the Wife having promised after his death never to quarrel that Tack yet thereafter insisting against the Tennents who alleadged upon the said promise it was answered that it being
upon this Bond so unwarrantably filled up The Lords found the Declarator Relevant and Proven and therefore Decerned the said Bond null reserving Action against Kinghorn upon any Debt due by Kinghorn to Keith as accords Tutor of Colzean contra The nearest of Kin of the Pupil February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil to hear and see it found and declared that the Pupils Lands were set too high and could not be keeped at these Rates and that the Tennents were in Arreir before his Tutory in great Sums which if he should exact would cast the Land waste and that it was for the good of the Pupil to set the Land at lower Rates which it might be able to pay and to quite so much of the Arreirs as the Tennents might pay the rest and be able to continue and Possess There being no compearance the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land and the conditions of the Tennents who have reported several of the Rooms to be too high set and what ought to be given down and what behoved to be quite to each Tennent that was deep in Arreir to inable him to pay the rest and Lâ—bour the Ground The Lords approved the Report with these Qualifications First That the Tutor should Discharge nothing simply but only till the Pupillarity were past that himself and Curators might then proceed as they saw Cause and that the Tutor before any Abatement of the Rooms should cause make Intimation at the Mercat Cross of the Jurisdiction and at the Paroch Church that such Lands were to be set at such a place such a day and whoever bade most for them being sufficient Tennents should have them and that at the said day if a better Rate were not gotten the Tutor might then or thereafter set at the Rates contained in the Commission Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Mirk he and the Barron of Mccorquodail his Brother are obliged to pay yearly 600. merks to the Wife after the Husbands Death and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks He arrests the Tocher in Mirks hands and pursues to make forthcoming and for instructing produces the foresaid Contract of Marriage It was alleadged for Mirk that he is not obliged to pay or make furthcoming the Tocher unless his Daughter were secured in her Jointer for the Tocher and Jointer being the mutual causes of the Contract neither Mccorquodail nor any deriving Right from him by Assignation or Arrestment can demand the Tocher till they secure the Jointer and that exception is Relevant both against Mccorquodail and his Assignies It was answered for the Pursuer that if it had been provided by the Contract that the Tocher should have been employed for the Wifes security the Defense had been Relevant or there might be some pretence if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks But the Contracters having agreed for no security for the future but having agreed upon a Personal security viz. of the Husband and his Brother the Husbands part of the Contract is performed and the Husband is no ways Creditor till his Death Which the Lords found Relevant and in respect of the conception of the Contract as aforesaid Repelled the Defense and Decerned Iohn Scot contra Alexander Cheisly and David Thomson February 9. 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly and David Thomson bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow for alleadged hindering the Executing of a Decreet and imprisoning him and being in an evil Condition in his Means he proposed to the said Iohn Scot his Good-brother that he must make use of his Name as Assigney to that Process lest his Creditors might affect any thing that might be obtained thereby and that Iohn Scot should give a Back-bond declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond he caused draw up a Bond bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore and for other good Causes and Considerations Iohn Scot obliges him to pay to a blank Person 3850. Merks in which Bond Alexâ—nder Cheisly filled up David Thomsons Name and which Bond was obtained by Alexander Cheisly by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander for clearing whereof he condescends on these Points viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly had been his Prentice and the said Alexander was his Curator and the said Iohn Scot is known to be a simple Person and the said Alexander Cheisly to be a subtile Person ready to take advantage Likeas it is evident that he did take advantage of the said Iohn Scot about that same time pretending that he was more able to act Iohn Scots Affairs then himself he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks and put in the Assignationâ— Clause of absolute Warrandice albeit by a Back-bond of the same Date it be clear that the Assignation was only granted for Love and Favour and for Agenting the Matter and that the one half should belong to Cheisly for his pains and the other to Scot but prejudice to Scots obligements in the Assignation which could be no other but the Warrandice whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father and a part was insolvent and that Scot who was Assigney by his Mother as Executrix had no more himself but Warrandice from her Deed yet by the absolute Warrandice he intended to be sure of the one half of the Sums although it s known that hardly the half will be recovered whereby Cheisly should have all and Scot who freely granted the Assignation should have nothing but less than nothing by being obliged to make up the half though so much were not recovered of the whole 2dly All the pretence of the Plea against Glasgow could never amount to 3850. Merks yet the Bond is conceived for absolute payment of that Sum albeit it was a meer Plea depending many years and Debated without success 3dly Cheisly himself did ever keep the Process and Assignation and did transact the Plea or a great part thereof with the Magistrats of Glasgow and got payment In this pursuit there was no Compearance for Cheisly but it was alleadged for David Thomson that whatever had past betwixt Cheisly and Scot no ground of Circumvention betwixt them could be Relevant to take away his Right who seeing the blank Bond filled up with his Name by Cheisly before it was brought to him and given to him
for 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 Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâ—igner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ— year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the â—eir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
most rationally ascribe the same to the first especially seing he had both the Rights from the same Party and was not introduced to the Possession by them more upon the one Right than upon the other It was answered for the Pursuer that albeit Parties may make use of any Right they have to Defend their Possession without interverting the same yet that must always be where the posterior Right doth not derogat from the former either as to Right or Possession But here the second Contract and Decreet is inconsistent with and derogatory to the former for the Earl having power to enter by the first till he were payed of one thousand pound Sterling resting of four fructibus non computandis in sortem taking a posterior Right whereby he was to enter for payment of nineteen thousand pounds fructibus non computandis in sortâ—â— he derogat so far from the first that he must Possess primo loco by the last seing the first is not reserved 2dly The late Earl could only be understood to enter in Possession by that Right or the former Heretors to relinquish the Possession to him upon that Right which then had paratam executionem and could then instantly have forced them to quite the Possession but that was only the last Contract and last Decreet whereupon the late Earl had obtained Sentence in his own Person in Anno 1643. when he entered in Possession But as for the first Contract and Decreet of Possession it had not then paratam executionem never being Established in the Persons of the Heirs of Line much less in the Person of the late Earl who had Right from the Heirs of Line by Assignation himself being only Heir-male The Lords found that the Possession was only to be ascribed to the last Decreet which only had paratam executionem primo loco without prejudice to the Earl if that Right were Exhausted to defend himself with the first Right in the next place Major Bigger contra David Cuninghame of Dankeith Iuly 15. 1670. MAjor Bigger having Right to the Teinds of Wolmet from the Earl of Lauderdail pursues David Cunninghame of Dankeith and Iean Dowglas Relict of Wolmet his Spouse for Spuilzie of the Teinds restricted to wrongous Intromission and insists for the fifth of the Rent The Defenders alleadge absolvitor because they produce a Valuation of the Teinds of Wolmet obtained at the instance of umquhil Patrick Edmonstonn of Wolmet before the Commission for Valuation in Anno 1636. The Pursuer answered that the Defense ought to be Repelled First Because Swintoun standing then in the Right of these Teinds had raised Reduction and Improbation of this Decreet of Valuation against Iames Edmonstoun as Heir to Wolmet and thereupon had obtained a Decreet of Certification which is now produced 2ly By Articles betwixt Dankeith and Major Bigger produced Dankeith Compts for a greater Duty than this Valuation and so passes therefrom and Homologats the Majors Right 3dly The Decreet of Valuation took never effect there having never been payment made conform thereto but Tacks accepted by the same Defenders and Duties payed by them of a greater quantity The Defender answered that the Certification could have no effect against the Defenders because it was only obtained against Wolmets appearand Heir who had only the Right of Reversion the Wodsetter who was Proprietar publickly Infeft and the said Iames Dowglas Liferenter by a publick Infeftment never being Called who do now produce the Decreet of Valuation quarrelled And as to the Articles they can import no Homologation because the Article anent the Teind bears only such a sum without relating to the fifth of the Rent or to the price of the valued Bolls The Pursuer answered that the Valuation having been obtained at the Instance of Wolmet and not of his Wife he might Reduce the same by Calling only Wolmets Heir who had not only the Reversion but a Back-tack and he was obliged to Call no other especially seing they had no Right to the Teinds the Defender answered that the Heretor has undoubtedly Interest in the Valuation though they had no Right to the Teind because it Liquidats the Teind and Liberats the Stock of any further and so hath the Liferenter for the Liferent Right especially she being publickly Infeft so that though the Decreet was obtained at umquhil Wolmets Instance yet he being Denuded of the Property by a publick Infeftment of Wodset with his Wifes Liferent reserved therein they could not be miskenned and their Right taken away by a Process against Wolmets appearand Heir who was Denuded of the Property and who did now produce the Decreet of Valuation and abode by it as a true Deed. The Lords Sustained the Defense upon the Decreet of Valuation and found the Certification could not take away the Liferenters Interest in the Valuation she not being Called and found the Articles to infer no Homologation but found the third member of the reply Relevant that Tacks were taken by the Defenders and Duty payed of a greater quantity since the Valuation Lady Lucie Hamiltoun contra Bold of Pitcon Eodem die LAdy Lucie Hamiltoun insists in her Reduction before Debated on the eight of Iuly instant against Pitcon on this Ground that abbeit the Disposition granted to him by George Hay the Common Debitor be anterior to the Pursuers Inhibition yet it must be Reduced on this Ground that it is without any equivalent onerous Cause and that albeit in bear an onerous Cause yet that will not instruct the same but it must be instucted otherwise than by Pitcons own Oath because it is betwixt conjunct Persons two Good-brothers and because it bears not only to be in favours of Pitcon himself but for the use and behave of the Creditors whose Names were then blank and thereupon are now excluded as being filled up after the Pursuers Inhibition so that the Disposition being in so far fraudulent and not totally granted to Pitcon for himself the proportion of his Interest cannot be known but by instructing the Debts due to him and for which he was ingaged the time of the Disposition It was answered for Pitcon that he was ready to instruct the Debts scripto and for some few to whom he had undertaken payment at the time of the Disposition he offered to produce their Bonds and to Depone that he undertook payment of them as said is which is all that is required by the Act of Parliament anent fraudulent Dispositions whereby the defect of an onerous Cause is to be proven by the Parties Oath who gets the Disposition The Lords Repelled the Alleageance and found that Pitcon behoved to instruct the Cause of the Disposition otherwise than by the saids Bonds and his own Oath It was alleadged for Kelburn another of the Creditors that he had Right by an Appryzing proceeding upon sums anterior to the Inhibition It was Replyed that the Appryzing was null First Because the Denunciation whereon it proceeded was not at the Mercat
would have been before the Bailzies when the Cause was Advocat at which time Cornelius Term of payment was not come The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters and that the case should be considered as it was the time that the Advocation was raised and preferred Charles Charters upon his posterior Arrestment in respect the Term of payment of his Debt was come to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come whereupon Citation was used before the Term came The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation nothing was Called until the midle of December Murray of Achtertire contra Gray December 16. 1670. MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds whereof one was that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground wherein some little Burns were gathered to a Head and thence were conveyed through Achtertires own Ground to his Miln Lade and that Gray had broken down that Cast whereby the Burns were divertedâ— Gray having compeared and proponed nothing the Libel was found Relevant and admitted to Achtertires Probation who by several Witnesses proved that the Defender had broken down that Cast of whom some Deponed simply but two of them Deponed thus that Gray had broken down the new Cast but that the Burns gathered therein in the time of Floods did water Grayâ—s own Lands and that by the new Cast they were keeped in and could not water the same whence it arose to the Lords consideration whether that Deed of Contravention was sufficiently proven or whether the Testimonies of the Witnesses being qualified that the Defender had done the Deed but in continuation of his former Possession of the watering of the Burns whether respect ought to be had to that qualification some thought not because the Fact as it was Libelled was found Relevant and proven and the qualification ought to have been proponed by way of Defense but it was found that the Testimonies being so qualified did not sufficiently prove to infer a Contravention for if the Contravention had been proven by Writ or Oath such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention But because the Testimonies were not to be considered by the Parties the Lords ordained the Sentence to expresse the foresaid Reason of it that the Pursuer before Extract might alleadge any thing thereanent he thought fit Nicol Langtoun contra Robert Scot Decem. 17. 1670. JOhn Graham of Gillesby having Set a Track of his Lands of Graystoneflat to Nicol Langtoun and being at that time at the Horn Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior and thereupon obtains general and special Declarator Decerning Langtoun to pay the Duties to him as Donator Langtoun Suspends and raises Reduction on this Reason that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen and it being answered by Scot that he being a lawful Creditor of the Rebels might lawfully accept and make use of this Gift for his own security albeit the Rebel had procured the same and Scot the Donator having Deponed anent the simulation of the Gift did acknowledge that the Rebel had procured the Gift and that he had it blank in the Donators Name and that he did fill up Scots Name and delivered it to him The Lords found the Oath to prove the simulation of the Gift and that it having been in the Rebels own hands blank in the Donators Name it was equivalent to an Assignation from the Rebel and that Scot accepting of it so from him could not justly or bona fide make use of it even for security of a just Debt in prejudice of the Tacks-man who had before gotten his Tack from the Rebel Alison Kello contra Kinneir Ianuary 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet having pursued a Reduction of an Apprizing of the Lands of Paxtoun Led at the Instance of Mr. Samuel Hume against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason that the said Mr. Alexander was satisfied by his Intromission within the Legal this pursuit being against Mr. Alexander Kinneirs Son who is Minor and being stopped upon his Minority quid Minor non tenetur placitare de hereditate paterna The Lords did upon the Pursuers Petition grant Commission to Examine Witnesses upon the Intromssion to remain in retentis till the Cause might be Determined in respect the Witnesses might die in the mean time which being reported the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation that the stated Accompt might remain in retentis The Defender being heard again before the Lords did alleadge that the Accompt could not be stated upon this Probation but that there being yet no Litiscontestation in the Cause neither can be through the Defenders Minority and this Probation being but before answer to remain in retentis and taken by Commission the Defender not being present at the Examination and the matter being very ancient fifty years agoe the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance viz. That he offered him to prove that during the years of the Legal the Lands were Possest by several Persons by Dispositions or Tacks both under Reversion for certain Sums of Money due by the said Margaret Nisbet which Rights were granted by her and were now produced by the Defender which with the saids Rights produced is much more pregnant nor the Pursuers Probation by some inconsiderable Countrey People without any Adminicle in Writ It was answered for the Pursuer that the alleadgeance was no way Relevant being contrare to her Libel and founded super jure tertij for this Defender hath no interest in the Wodset Rights nor doth any Person appear for them or own them and if this were sustained it would afford a current evasion in all kind of Pursuits upon Intromission by offering still to prove that the Defender did not but that a third Party did Intromet and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation and in no case have allowed a conjunct probation It was answered that in a matter so old and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party and have oft so done especially the same ought to be done here where the probation is by inconsiderable Persons and so suspect and exorbitant proving â—â—nneirs Intromssion to be before he had any Right and the quantities to be much higher then the written Tack of the Lands produced The Lords found that they could not admit a Probation for
the Cautioner in the Suspension may be reached It was alleadged no Transferrence because Bagillo â—s Father obtained a general Discharge from Denhead before any Intimation upon Collistouns Assignation and albeit the Discharge be posterior to the Assignation produced it must liberat the Debitor who was not obliged to know the Assigney before Intimation It was answered that the Debitor might pay to the Cedent bona fide before Intimation yet a Discharge obtained from the Cedent after Assignation would not liberate against the Assigney though it were before Intimation and this general Discharge bears no onerous Cause 2dly This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead at that time it cannot extend to this sum assigned by Denhead long before and who could not know whether the Assigney had intimate or not and cannot be thought contrair the Warrandice of his own Assignation to have Discharged the sum Assigned especially seing there was an Assignation long before which was lost and the Intimation thereof yet remains and this second Assignation bears to have been made in respect of the losse of the former and yet it is also before this general Discharge The Lords found the general Discharge of the Cedent could not take away this sum formerly assigned to him though not Intimat unlesse it were proven that payment or satisfaction was truely made for this Sum. Alexander Wishart contra Elizabeth Arthure February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh and having entered in Possession by lifting of Mails and Duties some of his Discharges being produced Alexander Wishart as now having right to the Tenements pursues a Declarator against Elizabeth Arthure only Daughter to Mr. William for declaring that the sum whereupon the Annualrent was Constitute was satisfied by Intromission with the Mails and Duties of the Tenements The Defender alleadged that this was only probable scripto vel juramento and not by Witnesses for an Annualrenter having no Title to Possess out-put and in-put Tennents cannot be presumed to uplift more than his annualrent especially seing his Discharges produced for many years are far within his annualrent and it were of dangerous consequence if Witnesses who cannot prove an hundreth pounds were admitted not only to prove Intromission with the Rents so far as might extend to the Annualrent but so much more as might satisfie the Principal and thereby take away an Infeftment for albeit that Probation has been Sustained to extinguish Appryzings which are rigorous Rights yet not to take away Infeftments of Annualrent It was answered that albeit Witnesses are not admitted where Writ may and uses to be adhibite in odium negligentis who neglected to take Writ Yet this is no such case and therefore in all such Witnesses are admitted for if the Pursuer had insisted against the Defender for intrometting with his Mails and Duties of whatever quantity and time within Prescription Witnesses would have been admitted The Defender could only have excepted upon his Annualrent which would have been Sustained pro tanto but the Pursuer would have been admitted to prove further intromission which being by vertue of his Security for a Sum and in his hand would Compense and Extinguish that Sum which is all that is here craved and whereupon the Witnesses are already Adduced The Lords Sustained the Probation by Witnesses for the whole intromission to be imputed in satisfaction of the Principal Sum and Annualrents Lowrie contra Gibson Eodem die LOwrie being Superiour to Gibson in a Feu pursued him before the Sheriff for annulling his Feu for not payment of the Feu-duty and obtained Decreet against him and thereafter Pursued him before the Lords for Mails and Duties wherein Compearance being made Gibson made an offer that if Lowrie would free him of bygones and pay him 1600. merks he and his Authour would Dispone their whole Right which being accepted by the Superiour Decreet was pronunced against Gibson to denude himself upon payment Shortly thereafter Gibson drew up a Disposition and Subscribed it in the Terms of the Decreet and offered it to Lowrie who refused it because his Author had not Subscribed Thereafter Gibson Suspended upon Obedience and Consigned the Disposition which was never Discussed but Gibson continued in Possession still from the Decreet which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator annulling his Feu because the Sheriff was not a competent Judge to such Processes and because Gibson had offered the Feu-duty which was refused so that the not payment was not through his fault and also insisted for Reduction of the Lords Decreet as built upon the Sheriffs Decreet and falling in consequence therewith And as for any offer or consent the assertion of a Clerk could not instruct the same unless it had been warranted by the Parties Subscription It was answered that Gibson having Homologate the Decreet by an offer of the Disposition conform thereto which was only refused because it wanted the Authors Subscription and having Suspended upon Obedience he cannot now object either against the Decreets or Consent It was answered that so long as the Decreets of the Sheriff and the Lords were standing Gibson might be compelled thereby to Consign the said Disposition but that is only on these Terms to be given up if the Lords saw Cause and hinders not Gibson to alleadge why it should not be given up And as to the offer to deliver the Disposition the Instrument of the Nottar could not instruct the same but only Gibson's own Oath The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson yet the simple offer to deliver the Disposition did so Homologate the Decreets and Consent that he could not quarrel the same but they found it not proven by the Instrument without the Oaths of the Witnesses insert in the Instrument And in regard that Lowrie had letten the matterly over for more than twenty years they Declared that the Agreement should only take effect from this time and that Gibson should not be comptable for the bygone Duties Ninian Home contra Francis Scot. February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. merks He Suspends on this Reason that both Parties having referred the matter verbally to an Arbiter he had determined 200. merks to be payed for all whereupon Hume had pursued It was answered that verbal Submissions and Decreets Arbitral are not binding but either Party may resile before Writ be adhibite The Lords found the Reason was Relevant to be proven thus by the Chargers Oath that he did submit and by the Arbiters Oaths that they did accordingly determine Lowrie of Blackwood contra Sir John Drummond Eodem die SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond for love and favour and for better incouraging Sir Iohn to pay his Debt as the
the 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
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
fructus consumptos suos It was answered that a Title that needs Reduction may be the Ground for Possession bona fide but this is absoltely null by Exception 2dly The obtainer of the Decreet was in pessima fide because imediatly after the obtaining it it was Suspended and the Tacks-man was able to instruct that there was no Duties resting at that time and though Protestations were obtained yet the Suspension was never Discust against the Tacks-man The Lords Repelled this Defense also The Defender further alleadged that albeit he would make no opposition against the first Tack yet the second Tack could have no effect against him because before it was cled with Possession Robert Menzies setter thereof was denuded in favours of Birthwood from whom the Defender has Right and it is unquestionable that a Tack not attaining Possession is no real Right and that a singular Successor Infeft before Possession on it will exclude it 2dly As the Tack was not cled with Possession so Robert who set it had no real Right in his Person when he set it but only the Decreet Arbitral The Pursuer answered to the first that he opponed his new Tack which contained not only a Ratification of the old Tack but a new Tack de presenti for five merk and so was like a Charter by a Superiour with a novo damus whereby the Tacks-man might ascribe his Possession to any of the Tacks he pleased and if this Tack had born expresly a Reservation of the Fathers Liferent for eighty pounds yearly it would have been unquestionably a valide Tack from the Date and Payment to the Father by the Reservation would be by vertue of the new Tack as well as of the old So likewise the Tacks-man might Renunce the old Tack and retain the new or if the new Tack had been taken without mention of the Old the same would have been cled with Possession albeit it could not effectually exclude the payment of fourscore pounds to the Father during his life as having a better Right by the Reservation As to the second Alleadgeance albeit Robert who set the Tack was not Infeft when he set it yet Robert being thereafter Infeft his Right accresced to the Tacks-man in the same manner as if he had been Infeft before fictione juris It was answered to the first that the new Tack did not bear a Reservation of the old but the Tacks-man having two Tacks in his Person at once although he might quite either of them or declare to which of them he ascribed his Possession before the interest of any other Party yet not having so done he must be holden to Possess by the first because he continued to pay the Tack-duty of the first and never payed the Tack-duty of the second till the Setter was Denuded To this it was answered that the payment to the Liferenter who had a better Right did not import the Possessing by the first Tack and the Tacks-man needed not declare his option till he was put to it but Law presumes that he Possessed by that Right which was most convenient for him As to this Point the Lords found that the Tacks-man might ascribe his Possession to either of the Tacks he pleased both of them being set for a distinct Tack-duty and that agibatur by the second Tack that the Fathers Liferent should be Reserved As to the other Point The Defender alleadged that the Infeftment of Robert who set the Tack could not accresce to the Tacks-man because the same day Robert was Infeft he was Denuded in favours of Birthwood and he Infeft so that it must be presumed that he was only Infeft to that effect that Birthwoods Right might be valide 2dly It was offered to be proven that Birthwood procured Roberts Infeftment by his own Means and so it cannot accresce to any other in his prejudice It was answered that whoever procured the Infeftment of the Common Author the fiction of Law did draw it back to all the Deeds done by that Author that might arise from that Infeftment which cannot be divided or altered by the Acting or Declaration of either or both Parties Which the Lords found Relevant and found the Infeftment did accresce to the Tacks-man in the first place whose Tack was prior with absolute Warrandice Lord Balmerino contra Hamiltoun of Little Prestoun June 22. 1671. Wishart in Leith did grant Infeftment of an Annualrent of fourty pounds yearly out of two Tenements in Leith in any part of them Which Annualrent by progress belonged to Mr. Iohn Adamson and after the Constitution of the Annualrent the two Tenements were Transmitted to different Proprietars and now the one belongs to the Lord Balmerino and the other to Hamiltoun of Little Prestoun the Annualrenter did only insist against Balmerino's Tenement and upon an old Decreet of Poinding of the Ground of that Tenement hath continued in Possession and Distressed Balmerino Who having Suspended on this Ground that the Annualrent being out of two Tenements whereof he had but the one he could be only lyable but for the one half The Lords found that the Annualrenter might Distress any of the Tenements for the whole but reserved to Balmerino his Relief as accords Whereupon Balmerino now pursues Little Prestoun to Repay him the half of the Annualrent for which he was Distressed because he having payed did liberate Little Prestoun of the Annualrent which affected both Tenements they being now in different Heretors hands behoved to infer a proportional Relief as is ordinar in all Annualrents Constitute upon any Barony or Tenement which thereafter comes to be divided The Defender alleadged Absolvitor because he had bruiked his Tenement much more then fourty years before this Pursuit free of any such Annualrent and therefore had prescribed the freedom thereof The Pursuer answered that Prescription was hindered by the Annualrenters Possession in getting his Annualrent which though it had been but by a Personal Obligement it would have preserved his Right intire to all effects in the same manner as payment by a principal Debitor hinders the Cautioners Bond to Prescribe though he were free thereof for fourty years It was answered that albeit there might be ground for the Reply where the Annualrent is Constitute out of one Barony or Tenement whereon Infeftment may reach the whole yet it cannot hold in this case where the Annualrent is Constitute upon two distinct Tenements and where there behoved Seasing to be taken upon both of them and if omitted upon one that would be free The Lords found that payment of the Annualrent out of any of the Tenements saved Prescription as to both Leslies contra Alexander Iaffray Eodem die LEslies pursues Alexander Iaffray and others for producing of Writs and counting anent a Wodset Right as being satisfied by intromission and that as appearand Heirs ad deliberâ—â— dum Wherein the Lords refused to Sustain the Summons for Compt and Reckoning but only for Exhibition albeit there was a
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
this Pursuite Marjory Murray contra Isobel Murray Eodem die UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements did thereafter by his Testament leave a Legacy of a thousand pounds to their Daughter Marjory Murray and gave other Provisions to the said Isobel his Wife and provided his Daughter to the two Tenements Which Testament his Wife Subscribes and after his Death Confirms the same but under Protestation that her Confirmation should not prejudge her own Right The Daughter pursues for the Legacy of 1000. pounds and for the Rents of the Tenements and alleadges that the 1000. pounds must be free to her without being abated by Implement of the Mothers Contract And likewise the two Tenements by her Mothers consent and subscription It was answered that the Mothers subscription was a Donation betwixt Man and Wife for being to the Mans Daughter whom by the Law of Nature he is obliged to provide it was all one as if it had been to himself 2dly her Subscription was obtained in luctu her Husband being near his Death and at his desire ex revèrentia maritali and the Confirmation can be no Homologation because of the Protestation foresaid It was answered that it was protestatio contraria facto and the Wife had no necessity to do it for she might have Confirmed her self Executrix Creditrix The Lords found that there was here no Donation between Man and Wife but in respect the Parties had not Debated the effect of reverentia maritalis ordained them to be heard thereupon and found the Protestation sufficient to take off the Ratification or Homologation by the Confirmation and found the Legacy of 1000. pounds to be left only according to the nature of a Legacy out of the Defuncts free Goods and would not exclude the Relict or any Creditor Sir David Dumbar of Baldune contra Sir Robert Maxwel Iuly 14. 1671. SIr David Dumbar of Baldune being Infeft upon several Appryzings in the Estate of Kirkcudbright pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun of all Rights of the said Estate granted by Baldune himself or by umquhil Iohn Lord Kirkcudbright or Thomas Lord Kirkcudbright or any of their Predecessours to whom they may Succeed jure sanguinâ—s to the Defender It was alleadged no Certification of any Writs made by the Predecessours of Iohn or Thomas Lords Kirkcudbright to whom they might succeed jure sanguinis because that can be no active Title to the Pursuer for if Iohn Lord Kirkcudbright himself were pursuing a Reduction he would not have a sufficient active Title to Reduce the Writs made by any Person to whom he was appearand Heir unless he had been actually Heir So neither can the Pursuer his Appryzer have further interest then Lord Iohn himself for albeit the Clause is Relevant passive against the Defenders to produce all Writs made to them or to their Predecessours to whom they may succeed jure sanguinis because Reductions and Declarators are Competent against appearand Heirs without any Charge to Enter Heir Yet they are not competent to appearand Heirs till they be actually Entered It was answered that the Pursuer being publickly Infeft has good interest to call for all Writs that may burden the Land to the effect he may improve the same as an impediment hindering his Infeftment But specially an Appryzer who has not his Authors Rights and that this has been always the stile of the general Clause in Improbations The Lords found the Defense Relevant and would grant Certification against no Writs but such as were granted by person whose Infeftments and Retours should be produced before Extract The Defender further alleadged no Certification against any Rights made by Thomas or Iohn Lords Kirkcudbright to the Defender because no person was called to Represent them Whereas it is known that George Lord Iohn's Nevoy is both appearand Heir-male and of Line and that this has been the common Defense always Sustained The Pursuer answered that the only ground of this Defense is when Defenders have Warrandice from their Authors and therefore the Pursuer ought to call their Authors that their Rights inâ—erring Warrandice upon them may not be Reduced they not being heard But here the Defender produces no Right from Lord Iohn or Lord Thomas and so the alleadgeance is not Relevant against the Production but only in case such Rights be produced it will be Relevant when the Pursuer insists to Reduce the Writs produced The Lords Repelled the Defense and reserved the same if any Right should be produced by the Defender bearing Warrandice Laird of Milntoun contra Lady Milntoun Eodem die THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun for annulling a Decreet of Divorce obtained at her instance against Iohn Maxwel her Husband the Relevancy whereof was Discust upon the 31. day of Ianuary 1671. and only the manner of Probation of the Corruption of Witnesses by prompting them how to Depone or by promising or giving them Bribes or any good Deed to Depone more than their ordinar Charges remained undiscust It was alleadged that such Reprobators were only probable by Writ or Oath of the Party adducer of the Witnesses post sententiam latam for Reprobators upon Corruption albeit they might be proven before Sentence by Witnesses above exception as to giving of Bribes which was a palpable Fact yet not then by prompting or promising or any words emitted which are only probable by the Witnesses adduced or by the Oath of the Adducer Neither in that case if the Witnesses adduced be above all exception can Witnesses be adduced against them but only their own Oath or Oath of the Party So that any Party that quarrels VVitnesses by Reprobators ought to do the same after they are adduced and before Sentence but if Sentence be once pronunced and Extracted it is res judicata quaepro veritate habetur And if Reprobators upon corruption be used after the Sentence upon Corruption the same can only be probable by the Oath of the Adducer And neither by the Oath of the VVitnesses adduced who cannot annull their own Testimony post jus quaesitum parti nor by other VVitnesses and if it were otherwise the greatest inconveniencies would follow for then the Sentence and Securities of the people founded thereon might for fourty years space be quarrelled upon pretence of corruption and singular Successors acquiring bona fide might be outed of their Rights As also there shall be no Termination of Process for as the first Sentence may be Canvelled by Reprobators against the Testimonies whereupon it proceeded so may the second be Canvelled in the same manner by a second Reprobator and so without end And seing the Law of this Kingdom hath been so jealous of Probation by Witnesses that it hath not allowed sums above 100. pounds to be proven thereby So Witnesses should not be admitted in Reprobators especially after Sentence It was answered that Reprobators being a necessar remeed against the
Partiality and Corruption of Witnesses and the question being only the manner of Probation by the Law of God and all Nations Witnesses are the general mean of Probation and so ought to take place in all Cases where Law or Custom hath not restricted the same and it cannot be pretended that ever there was one Decision of the Lords finding Reprobators only probable scripto vel juramento And it being acknowledged that Witnesses are competent ante sententiam there is neither Law nor Reason to refuse the same post sententiam especially with us where the Names of the Witnesses are never known till they be produced neither is their Testimonies published or ever known before Sentence So that the other Party can have no interest to quarrel their Testimonies or know them before Sentence and so Reprobators shall never be effectual unless proven by the Oath of the Party that hath Corrupted them which is as good as absolutely to refuse Reprobators for it cannot be imagined that a Party will Corrupt Witnesses and not resolve to deny it upon Oath And as â—o the inconvenience to singular Successors the Oath of the Author may be as hazardous to them as Witnesses and if the acquirer of the Sentence be denuded if in that Case even their Oath be not receivable it is easie to Evacuat all Reprobators And as for the inconvenience of perpetuating Processes that holds whether Witnesses be receivable in Reprobators before Sentence or after and if admitting of Witnesses be so qualified that it be only when the Witnesses in the first Sentence are not above Exception and the Witnesses in the Reprobators above all exception and that it be in a palpable Fact of receiving Bribes and recently only after Sentence and with a liberty to the Obtainer of the Sentence to astruct the same by other Witnesses or Evidences as in Improbations for Reprobator is a kind of Improbation there can be no hazard of multiplying Reprobators but this inconvenience if it were Relevant would not only take away all Reprobators but all Reductions for the Decreet Reductive may be quarrelled by a second Reduction and that by a third and so without end But the inconvenience on the other hand is far greater that all Parties will be sure to Corrupt VVitnesses if they do but resolve not to confess it and VVitnesses will be easie to be Corrupted being secured against all Redargution And whereas it is pretended that Witnesses with us prove not above 100. pounds that is only where VVrit may and uses to be adhibite in paenam negligentium But otherwayes VVitnesses are adhibite in the greatest matters as Improbation of VVrits Probation of Tenors Extortion Circumvention Spuilzies Ejections and Intromissions of whatsomever kind or quantity The Lords found Reprobators upon Corruption and prompting of VVitnesses only probable scripto vel juramento after Sentence this was contrair the opinion of many of the Lords and was stoped till a further hearing at the Bar. Earl of Hume contra The Laird of Rislaw Iuly 18. 1671. THe Kirk of Fogo having been a Kirk of the Abbacy of Kelso when the same was Erected this Kirk was reserved in favours of the Earl of Hume and Disponed to his Predecessors whereupon he pursues the Laird of Rislaw for the Teinds of his Lands as a part of the Teinds of Fogo who alleadged absolvitor because his Predecessors obtained Tack of their Teinds from the Minister of Fogo as Parson thereof which Tack though it be now expyred yet he bruiks per tacitam relocaâ—ionem The Pursuer Replyed that his tacite Relocation was interrupted by Inhibitions produced The Defender answered that the Inhibitions were only at the instance of the Earl of Hume who was never in Possession of his Teinds whose Right he neither knew nor was obliged to know and the Earl ought to have used Declarator against the Defender and the Parson of Fogo his Author which was the only habile way and not the Inhition The Lords Sustained the Processe upon the Inhibition and restricted the Spuilzie to wrongous Intromission unless the Defender could propone upon a Right in the Person of himself or his Author that could either simply exclude the Earls Right or at least give the Defender or his Author the benefite of a possessory Judgement and put the Earl to Reduction or Declarator VVhereupon the Defender alleadged that the Parson of Fogo was presented by the King as Parson of Fogo and did so bruik by the space of thirteen years which was sufficient to Defend him in judicio possessorio It was Replyed First That the Minister cannot pretend the benefit of a possessory Judgement because his Possession was not peaceable in so far as it was within the thirteen years it was interrupted by the Pursuers Inhibitions The Defender answered that he offered to prove thirteen years Possession at least seven years peaceable Possession before any Inhibition which is sufficient for as thirteen years Possession makes a presumptive Title decennalis triennalis possessor non tenetur docere de titulo yet where the Defender produces a Title viz. a Presentation as Parson he is in the common Case of a possessory Judgement upon seven years Possession The Pursuer further Replyed that albeit the seven years were peaceable and sufficient for a possessory Judgement yet the Defender cannot maintain his Possession by tacite Relocation for he having no positive Right in his Person his Tack being Expired he can only maintain his Possession upon his Authors Right as Parson and so can be in no better Case than his Author who if he were compearing not pleading the benefite of a possessory Judgement he would be excluded by this Reply that he had acknowledged the Earls Right and taken Assignation from him to the Tack-duty due by the Defender which though it would not be sufficient after the Defenders Tack to exclude the same if it were not expired yet it is sufficient against his tacite Relocation which can only subsist while his Author hath Right and Possession and being but a presumptive continuation of the Right it is easily taken away by any Deed of the Author It was answered that tacite Relocation being introduced by Law was as strong as a Prorogation and continuation of the Tack which could not be prejudged by any posterior Deed of the Parson The Lords found the Defense upon the Parsons Right cled with seven years peaceable Possession Relevant in judicio possessorio to defend the Defenders tacite Relocation but found the Reply Relevant that the Parson had accepted Assignation from the Pursuer to make the Defender lyable for the ordinary profits after the Assignation and after the first Inhibition but only for the Tack-duty till the first Inhibition and found that the tacite Relocation was not in a like case as if the Defender had a Tack or Prorogation Andrew Harlaw contra Agnes Hume Iuly 18. 1671. ANdrew Harlaw having obtained Decreet against Agnes Hume as Executrix to her Husband She Suspends and
raises Reduction on this Reason that the inferiour Judge did wrong in Decerning her being only Executrix Creditrix as being lyable for the whole Inventar because by the Law and Custom of this Kingdom Executors Creditors who Confirm only for obtaining payment of their Debt are lyable for no more but what they intromet with above the Debt due to them and are not lyable for further Diligence as other Executors Yea it was found upon the 11. of Iune 1629. observed by Dury that an Executor having no interest was not lyable for Diligence but only to Assign in the Case betwixt Nivin and Hodge It was answered that Executors Creditors are lyable for intromission and omission as other Executors because they accept an Office and exclude others who would be lyable for Diligence and they have no more advantage but that they are preferred to others as being Creditors and may pay themselves in the first place and it would be of pernicious consequence if their negligence should cause the interest of Children though Orphants as well as Creditors to perish and therefore the Lords did justly in Anno 1667. in the Case betwixt Bisket and Greig find an Executor Creditor lyable for the whole Inventar both for Intromission and Omission It was answered that it hath always been heretofore holden that Executors Creditors were not in the case of other Executors as to Diligence and that the ordinar Remeed was that Creditors might pursue the Executor Creditor and thereupon would obtain Assignations to any Debts in the Inventar they pleased except such as had been uplifted by the Executor for their own payment upon which Assignations they did always pursue for themselves so that there was neither Exclusion nor obstacle to the Creditors but on the contrair they got Assignations without being at the trouble to Confirm So that this Confirmation being many years ago it were against all Reason to make the Executors Creditors further lyable than they were then esteemed to be which might also be drawn back against all Executors Creditors which are very many The Lords having considered the Decision betwixt Bisket and Greig that it was upon a recent Confirmation and in favours of a Wife for her Provision out of whose hands the Executor had recovered the Goods though she was a priviledged Creditor They found that this Executor Creditor being long before Confirmed was not lyable for Diligence but only for Intromission and resolved to take it into consideration whether Executors Confirming in time coming should be lyable for Diligence and to consider the inconvenience on both parts and to make an Act of Sederunt thereanent Countess of Cassils contra Earl of Roxburgh Eodem die THe Countess of Cassils in her Contract of Marriage with the Lord Ker being provided to 5000. pounds he did stante matrimonio provide her to an Annualrent of 10000. merks further during her Lifetime and upon his Death-bed he made two Testaments of one date by the one he nominate his Father Tutor to his Children and left to him the Provisions of his Wife and Children by the other he provided his Lady to 5000. pound more than her Contract and named Provisions for his Children but subjoyned a Clause that if his Father who was then in England returned and made use of the other Testament that this Testament should be null The Earl of Roxâ—urgh his Father did return and was Infeft as Heir to his Son and did Ratifie his Sons Bond of Provision of 10000. merks and by his Testament did expresly mention his Sons former Testament and by vertue thereof named Tutors to his Oyes and by a Bond aâ—part gave different Provisions to them from these appointed by their Fathers Testament and this Earl of Roxburgh being Heir of Tailzie to him did in his Contract of Marriage reserve the Pursuers Infeftment of this Annualrent and did many years satisfie and take Discharges of the same and now she pursues the Earl as contraverting the payment for some years bygone and in time coming during her Life The Defender alleadged absolvitor because the Pursuer being competently provided by her Contract of Marriage this additional Provision was a Donation betwixt Man and Wife and so by the Law is Revockable at any time during the Husbands Life even upon Death-bed or by his Testament not only by a direct Revocation but by any thing that might import a change of his mind and accordingly he hath Revocked the same by his Testament produced adding only 5000. pounds to his Ladies Provision by her Contract and albeit thereafter the late Earl did Ratifie and acknowledge this additional Provision yet therein they were errore lapsi not having known of this Testament of the Lord Ker at least not having understood that it imported a Revocation of this Provision and therefore may justly now Reclaim against it The Pursuer answered that this Testament imported no Revocation which it did not mention neither is the addition of 5000. pounds therein an indirect Revocation which must ever be by an inconsistent Deed but both these conditions are consistent albeit that by the Testament it be modo inhabili and it is very like that the Testator being taken with a great Fever did not remember of this Provision or added the other 5000. pounds on this consideration that the former Provision was only to take effect after the Earl of Roxburghs Death so that the Lord Kers meaning might probably be to add 5000. pounds during his Fathers Lifetime 2dly Though the Testament could import a Revocation yet the Testament it self being Conditional only to stand in case his Father returned not to Scotland and made use of the other Testament of the same date all the Tenor of it and this restricting Clause is affected with the same Condition so that if the Testator had said that he had restricted his Ladies additional Provision to 5000. pounds in case his Father returned not but in that case left her to his Fathers provisions it would be truly a conditional Revocation which Condition is purified by the Fathers Return and providing the Lady by his Ratification of this Bond of Provision nor can it be justly alleadged that both this and that Earl were errore lapsi seing the Testament is produced by the Earl himself and was never in the Ladies hands and doubtless it hath been advised by the late Earl ere he Ratified who was a most provident man and his Ratification is dated at the Canongate ubi fuit copia peritorum and if Ratifications should become ineffectual or if errore lapsus should be Relevant upon the ignorance or mistake of the import of a Writ Ratifications should be of no effect but any ground that might defend the Ratifier before the Ratification might annul the same upon pretence that he knew it not and therefore errore lapsus is only understood de invincibili errore facti but never de ignorantia juris quae neminem excusat The Lords found that any Revocation
by the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâ—ssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
Annualrents The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this
Pursuer 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
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to
being Extracted on the improbation though it be omnium exceptionum ultima Ianuary 23. 1666. contra Earl of Kinghorn In Improbations the Lords declared they would grant three Terms for production of Rights of Lands and appointed the Ordinary to intimate the same November 26. 1667. Hay of Haystoun contra Drummond and Hepburn Improbation upon certification was found null because the Defender was then Prisoner of War in Ireland and his Right was after acknowledged by an agreeement though not perfected Iuly 25. 16â—8 Campbeâ— câ—ntra Laird of Glenâ—rchy In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth or Forgery of the Writs in question though the Writs were not produced there being pregnant presumptions and fragrant fame of Forgery Iuly 6. 1669. Barclay contra Barclay In an Improbation after certification was Extracted The Lords Examined Witnesses as to the Forgery in so far as it might be known without production of the Writs in question and though thâ— Witnesses were accessory to the Forgery November 9. 1669. Inter eosdem In an Improbation where the Writs were once judicially produced in Exchequer and wilfully keeped up certification being Extracted The Lords upon Copies Examined the Witnesses insert and Writer who confessed the Forgery and were moved thereto by the Defender whereupon the Writs were not improven as not being produced but the Writers and Witnesses were found Forgers and the Defender as user and accessory and all were declared infamous and remitted to the Council to use an extraordinary Remedy by Banishment against the Defender Ianuary 26. 1670 Inter eosdem In an Improbation where one of the Witnesses insert had a Designation alleadged competent to more persons all that were alleadged to be so designed that were alive were ordained to be Summoned and the hand writs of those that were dead to be produced Iune 8. 1671. Steuart contra Mckenzie and Kettlestoun In an Improbation of the Minute of a Tack wherein one Deponed that he had subscribed at the Defenders Instigation who told him that he caused the Pursuers Name to be set to the Writ and another that he did not see the Pursuer subscribe and the third who was Writer of the Minute and also Brother to the Defender Deponed that he saw the Pursuer subscribe with her own hand The Writ was found improven and false but there was not two Witnesses instructing who was the Forgeâ— Iuly 22. 1671. Miller contra Bothwel of Glâ—â—corse INCIDENT was not Sustained upon an Act before answer ordaining all Writs to be produced the parties would make use of which was found only to extend to such Writs as they then had Iuly 3. 1662. Kello contra Paâ—toun In an Incident four Terms were allowed for proving the having of the Writs by Witnesses but the Terms were to be short December 15. 1665. Moâ—teith contra Anderson An Incident was Rejected because the Pursuer of the principal Cause was not called thereby and the Executions suspect December 23. 1665. Laird of Câ—â—neck contra Lord Bargeniâ— Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill though it contained a blank but it was Sustained against the Defenders havers of the Writs for whom a blank was left though nor at first filled up in respect of the custom for the last and not for the first Iuly 3. 1667. Creditors of Waâ—chtoun contra Counteâ—s of Hume PRO INDIVISO was not sustained to hinder Removing of a Relick from an House as being a Tenement Indivisible though she had a Terce of it but the Heretor was found to have Right to possess yet so that if he dwelt not so himself she should be preferred to all others she giving like Mail as others would pay Ianuary 26. 1665. Logan contra Galbraith INFEFTMENT of Annualrent holden base was found valide against a posterior Publick Infeftment because thereon there was a Decreet of poinding the Ground though it could take no effect for a long time seing the Entry to the Annualrent was not till after the Constituents death February 26 and 27. 1662. Creditors of Kinglassie competing Infeftment past in Exchequer on an appryzing against one who was Infeft by his Authour not Confirmed was found not to supply or comprehend a Confirmation in prejudice of another Creditor who regularly had obtained Confirmation of that null Seasine in so far as might concern his base Right depending thereon Ianuary 16. 1663. Tennents of Kilchattan contra Laird of Kilchattan Major Campbel and Baillie Hamiltoun Infeftments graâ—uitous to a Wife after she was provided by her Contract of Marriage was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply Iuly 22. 1664. Lord Loure contra Lady Craig An Infeftment to a Wife in Liferent was Sustained by her Seasine adminiculat by her Contract albeit the Seasine was not immediatly upon the Contract but related a Bond granted for the same Cause which was not produced Ianuary 29. 1665. Norvil contra Sunter Infeftment of warrandice Lands being in the same Investiture with the principal Lands and both holden base was preferred to a posterior publick Infeftment of thâ— same Warrandice Lands though cled with long possession and that upon an Action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. An Infeftment of Kirklands was Sustained though it bear to be upon Resignation and had not the râ—ddendoâ—per expressum but relative to the former Infeftment without necessity to produce any original Right seing the Charter was subscribed by the Abbot with consent of the Convent Ianuary 17. 1666. Lord Rentoun contra Feuars of Coldinghame An Infeftment to a person on her own Resignation bearing expresly her to be Heir to her Father who was last Infeft The Charter was found equivalent to a precept of clare constat Ianuâ—ry 20. 1666. Inter eosdem Infeftment of the Office Forrestrie with a Duty out of the whole Lands of an Abbacy was found valide being granted by the Abbot and Convent without Confirmation by the King or Pope Ibidem Infeftment in warrandice granted by a Husband to his Wife though base holden of himself and ex intervallo after the principal Infeftment was found valide against a posterior publick Infeftment of the same warrandice Lands as being cled with the Husbands Possession in the principal Lands and that there needed no Declarator of Distress or Eviction but a pursuit of Removing or Mails and duties upon the Eviction is sufficient which cannot be excluded by a possessory Iudgement upon seven years Possession by the publick Infeftment unless it were seven years after the Eviction February 20. 1668. Forbes contra Innes An Infeftment of Annualrent being before a Liferenters Infeftment after which there followed a corroborative Security accumulating the bygone Annualrents and giving Infeftment for both which posterior Security was not Sustained against the Liferenter nor was it held
Scotsmen as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ— taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ— to the Legataâ— as lâ—gâ—tum rei aliena scienter legatâ— for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprâ—â—l contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â— Scot of Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ— sum it being as pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâ—oyned that he would not pass from the communing and albeit he had received the Keyâ— of the House seing there was neither Minute nor other Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ— competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ— which werâ— visible and instantly vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â— 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Groâ—nds of Excommunication who having founded upon an appeal to the King and Council The Lordâ— having had an account from the Council that they had Remitted that matter to the â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â— Scâ—â— coâ—tra Bâ—ssâ—wel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â— Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r â— 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 in the Waâ— bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ— found Iyable for publick burden with the 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract â—nfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ—-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest
the Lands and Sums to the Heirs of the marriage which failing the mans Heirs nor yet to make any portion thereof to return to the Wife in that case as not being ordinary but only to rectifie the same as to the Wifes loynture November 22. 1664. Mâ—gil contra Ruthven of Gairn Minority and Lesion was found only competent by Reduction and not by Exâ—eption or Suspensâ—on Iune 28. 1665. Kyâ—e contra seaâ—oun Minority and Lesion was not â—lided because the money was delivered to pretended Curators who were lyable to the minor without diâ—cussing the Curators first seing they were not in this Process and the minor hath his option to Reduce against the Creditor or pursue his Curators and Intrometters Iuly 2. 1667. Lord Blantire contra Walkinshaw Minority and Lesâ—on being insisted in by reduction and majority being alleadged in defense neither party was preferred in probation but Witnesses allowed hinc inde February 20 1668. â—arquâ—ar of Towliâ— contra Gordouâ— Minority and Lesion was sustained to Reduce a Disposition by a Wife to her Husbands Brother though it had been to her Husbands behove in contemplation of the marriage seing there was no remuneratory provision on the Husbands part and that the legal Terce was not enough but that the Husband ought to have acquiesced in his jus mariti as well as the Wife in â—er Terce or both had mutual provisions here the Wife was carried away and married without her Freinds consent Iuly 14. 1669. Earl of Marischal contra Keith of Whitehaugh A MINVTE disponing Lands with part and pertinent was found to be extended â—o as to express common pasturage in a Muire possessed therewith the time of the Bargain February 14. 1668. Borthwick contra Lord Borthwick A Minute was exâ—ended by the Witnesses insert as to the manner of payment which was not so exprest therein Ianuary 15. 1666. Châ—ap contra Philip. A MISSIVE LETTER by a Merchant to a Factor to send home Wine on such another Factors credite with whom the Writer not being acquaint but upon the Factors account was found to oblige the Writer and not that third party unless he had accepted neither then did it liberate the Writer but the third party was expromissor in this the Lords would not take Examination of Merchants what such Letters did import February 7. 1665. Pallat Factor at Burdeux contra Fairholm A Missive Letter was found to instruct an accompt of 100. pound sterling received and Furniture sent albeit it was not holograph nor amongst Merchants but betwixt noble persons being for â—urniture sent from London to the Writer of the Letter by the other noble person being then at London to whom it was written the said receiver of the Letter making Faith that this was the true Letter that he received from the other February 28. 1671. Earl of Northesk â—ntra Viscount of Stormont Missive vide Clause Iuly 15. 1662. Wauchop contra Laird of Niddrie c. A MOTHER was found obliged by the Law to aliment her Children according to her means they having no means of their own or any person representing their Father able to aliment them in their Family but that the Mother was only â—bliged to aliment them in her Family dâ—d not to pay modification for their Education out of her Family albeit they were â—oble persons and the Mother had miscarried February 23. 1666. Children of the Earl of Buchan contra Countess of Buchan A Mother taking a Bond to her self in Liferent and to her Children in Fee was â—ound not to have poweâ— to alter or assign that Bond to another as being presumed to be made by her own means but the same was presumed to be the Childrens meansâ— by their Father though their Mother was not Tuâ—rix or Curatrix to them seing the Bond did not express it to be the Mothers own means noâ— reserved a power to the Moâ—â—er to Dispone February 18. 1671. Dundas contra the Lairds of Ardrosâ— and â—ouch MOVEAâ—â—ES being craved to be restored as being the Pursuers the Libel was not found Relevant unless he condescended quomodo desâ—t â—osildire and instruct the same and he having condescended that it was by Loan it was found probable by Witnesses 〈◊〉 21. 1665. Scot contra Fletcher In Moveables possession presumes a Title without necessâ—ty to instruct the possessors authors Rightâ— without distinction of ordinary moveables or lewels unless the presumpâ—ion be elided by â—â—onger probation that such Iewels could not have belonged to him that impignoâ—ate the same who neither had them as a Merchand nor leweler neither did nor could make use of them for his own wearing Decâ—mber 12. 1665. Ramsay contra Wilson Here the first Author Impignorat them by Writ and immediatly â—ent abroad NEAREST OF KIN surviving the Deâ—unct Transmit their share of the deads part to their â—xecutors and it doth not accresâ—oâ—â—â— the rest of the nearest of kin or to their Executors February 1â— 166â— â—ell contra Wilkie IN NONEâ—TRY the full Rent is due from the citation in the general Deâ—â—arator and not from the time of the Sentence only 〈◊〉 and accordingly the special Declarator was sustained Iuly 25. 1666. Harper contra his Vassals Idem Iune 12. 1673. Faw contra Lord Balmerinâ— and Laird Pourie NOVITER Vâ—NIENS AD NOT ITIAM was sustained to reduce the Circumduction of a Term upon the Suspenders making Faith that the Writs now produced to prove what was then â—o have been proven were found out by her since the Term was Circumduced Iune 29. 1665. Norvil contra Suntar OATH OF A WIFE never to come in the contrary of her Bond granted 〈…〉 was found not to hinder her to alleadge that the Bond was null ipso jure February 18. 1662. contra 〈◊〉 Oath of parties being taken and they deponing upon the Tenor of a Writ and assoilzied thereupon were decerned thereafter upon production of the same Writ as not being contrary to the Oath but being only in so far as the Deponent Remembred the Tenor of the Writ November 23. 1665. Campbel contra Doctor 〈◊〉 The Oaâ—h of an author was found competent against a singular Successor in an Appryzing for proving the â—ame satified by intromission seing before this Defenders Right the matter was Litigious and an Act Extracted referring the intromission to that Authors Oath Iuly 14. 1666. Sharp contra Glen OATH OF CALVMNIE was found Competent as to one point of a Libel where the rest was not to be proven by Oath but in respect there could be no evident difference as to that point betwixt the Oath of Calumny and Verity and that the point was no ways probable but by the Oath of Verity the Oath of Calumny thereanent was refused February 20. 1667. 〈◊〉 contra 〈◊〉 OATH EX OFFICIO â—nent having of Writs was found to be given if at any time the Deponent had them and how he put them away that it might appear if fraudulently but not to depone if he knew who had them as not being proper November 1â—
Discharges of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â—664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was â—ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linâ—â—thgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude â—ucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ— except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of â—osse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent â—ut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâ—a The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâ—ldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ— was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they â—oâ—sed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was â—ound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoâ—rse and conâ—ortship though made without consent or special Commission from the Owners being both in precinctâ— belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coâ—nterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to â—ry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
Writ 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
power to Dispose of fourty Chalders of Victual and also power to do any Deed he pleased in favours of Balhaven and there could be no Deed more rational then to give a Reversion of his own Estate upon payment of all that the Pursuer had payed to him or for him The Defender answered that this general Clause cannot be understood to be prejudicial to the substance of the Disposition and special Clauses in favours of his Son and the Defenders Oye and their Successors The Lords Repelled the Defense and declared but of consent of the Pursuer superceded to Extract for a time and appointed two of their Number by whose sight the â—ursuer and his Son should be Denuded and the Defender Secured so that it came to no Debate whether such a Clause irritant as this in a Reversion of that which was truely Bought and Sold irredeemably before and no Wodset could be purged Iohn Campbel contra Constantine Dougal Eodem die COnstantine Dougal having granted a Bond to Iohn Houstoun bearing that Iohn for himself and as Administrator for his Son Constantine Campbel had Lent the sum and that the same should be payable to the Father he being on Life and failzieing him by Decease to be payable to Constantine his Son as being his own proper Moneys and to his Heirs or Assigneys Constantine Assigns this Bond to Iohn Campbel who having pursued Exhibition thereof and it being produced insists for Delivery It was alleadged for the Producer that it ought to be Delivered back to him because he had right thereto by Assignation from Iohn Houstoun who in effect was Feear of the Sum it being Lent to him and payable to him during his Life and Constantine his Son was only Heir substitute as is ordinarly interpret by the Lords in such Bonds or Sums Lent by Fathers to be payable to themselves and after their Decease to such Bairns 2dly The Father aâ— lawful Administrator to his Son might have Lifted the Sum in his Sons Minority and therefore he might Assign the same The pursuer answered to the first that albeit Bonds for Money Lent by Parents payabâ—e to themselves and such Children after their Death be so interpret that the Fathers are Feears yet that is only where the Sums are the Parents own but this Sum is acknowledged to be the Sons own Money bâ— the Bond it self 2dly Albeit the Father as lawful Administrator might have Lifted the Sum yet cannot Assign because that is no proper Act of Administration comâ—â—tent to Tutors or Administrators and Executors may uplift Sums and yet cannot Assign The Defender answered to the first that the Money is Lent by the Father not only as Administrator but bears expresly for himself and that these words as being his own Money did not sufficiently prove that it came not from the Father but that after the â—athers Decease it would be the Sons Money To the second that the conception of the Bond being expresly to pay to the Father warranted him to Assign and the Assignâ—y being his Procurator might Lift as well as he the same way as Assigneies can Lift during the Executors Life The Lords found the conception of the Bond to constitute the Son to be Feear and that at leâ—st the words as being the Sons own Moneys presumed the same to have been so ab initio unless it were positively proven that the Money when Lent was the Fathers and found that the Fathers Assignation as lawful Administrator could not exclude the Son but that point whether the Deâ—tors paying to the Fathers Assigney during the Sons Pupillarity or Minority was neither positively alleadged by the Parties nor considered by the Lords Iames Paterson contra Homes December 17. 1667. JAmes Paterson having Charged the Earl of Home in anno 1662. for payment of a Sum due by his Bond. The Earl suspended and found one Brunt-field Cautioner and at the foot of the Bond of Caution Home of White-â—ig Attested the Cautioner in these Terms viz I Attest the Cautioner to be sufficient and subscribes the same which is Registrat with the Bond it self and the Extract produced bearing the same The Suspension being Discust against the Earl of Home and the Cautioner Charged with Horning Paterson pursues the Attester subsidiary for payment of the Debt It was alleadged for the Defender Absolvitor because he having but Attested the Sufficiency of the Cautioner can be holden no further then a Witnesse and so can only be found lyable if his Testimony were found false or that ex dolo he had Attested a person to be sufficient not according to his Judgement but either contrair to his knowledge or without knowledge of his Condition at least his Attesting can only oblige him to prove that the Cautioner when he Attested him was holden and repute a person sufficient for the Sum and that he had a visible Eâ—â—aâ—e in Land Bond or Moveables The Pursuer answered that the Attester behoved to be lyable to him because ejus facto by the Attestation the Suspension was obtained and the Principal being dead without any to represent him and the Cautioner insolvendo the Atâ—ester is obliged de jure to make up the Damnage falling out by his Deed. The Lords found the Alleadgeance for the Attester relevant viz. that the Cautioner was holden and repute sufficient for such a 〈◊〉 at the time of the Attest to be proven prout de jure Lord Abercromby contra Lord New-wark Eodem die THe Lord Abercromby having Sold to the Lord New-wark the Barony of St. Ninians there was a fitted Accompt subscribed by them both in anno 1647. Containing the Sums payed by New-wark and at the foot thereof concluding thirty seven thousand Merks to be Due but there is no mention made of the Instructions in the Accompt the second Article whereof bears payed to Abercrombies Creditor 30. thousand Merks whereâ— upon Abercromby alleadges that seing the Accompt bears not the Delivery of the Instructions that New-wark at least must produce the Instructions of this Article which is general for the Bonds of these Creditors are yet above Abercrombies Head and New-wark makes use of some of them to exhaust the thirty seven thousand Merks Bond at the foot of the Accompâ—â—â— It was answered for New-wark that after 18. years time that he was not obliged to Compt again but the foot of the Accompt being subscribed by the Pursuer beaâ—ing 37. thousand Merks to be only Resting was sufficient to Exoner him and the not mentioning of Instructions Delivered cannot presume or prove against him that they are in his hand else the Accompt signifies nothing and he must not only Instruct this Article but all the rest neither did he make use of any Bonds to exhaust the foot of the Accompt but such only for which Precepts were direct to him after the Accompt The Lords found the Defender not lyable to Compt or produce the Instructions of any of the Articles unless it were proven by his Oath or
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
Kings Farmorers but that they had Common Pasturage in the Moor of Selkirk is not only presumed because it is the Common of the whole Barony and Possest by all the adjacent Feuars thereof but also by their continual Possession since for Possession 40. years is sufficient to prove all bygone Possession since the Right capable of that Possession it being impossible to adduce Witnesses to prove Possession eight score years since otherways and therefore as in the Case of the Lord Borthwick and William Borthwick Decided the 14th of this Instant The Lord Borthwicks Minut Disponing the Lands cum pertinentibus without any word of Pasturage was found to carry Common Pasturage in the Moor of Borthwick as being a Pertinent of the Lands Disponed the time of the Minut and not Reserved much more the King Disponing the Lands of Haining not only cum pertnenâ—tibus but cum pascuis et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk being then the Commonty of the Barony so that any Interruptions done since cannot take away the Right of Common Pasturage once constitute by the King and albeit the King had unquestionably granted the Right of Property to the Town thereafter yet that could not prejudge the Common Pasturage of another Constitute before For if Haining claimed this Common Pasturage only by Possession and Prescription Interruptions might be Sustained to exclude the famine but he claimes it chiefly by vertue of his Infeftment as having Right thereto the first day he was Infeft so that his Possession since albeit troubled by this Commonalty yet preserves his Right that the Town cannot alleadge a total and compleat Possession excluding him and thereby taking away his Right by Prescription in their Favour and as to the Towns Charter cum communiis it contains nothing per expressum of this Moor or Pasturage therein nor gives any thing de novo but bears cum communiis adâ—urgum spectantibus which the King might have given though there had not been a Commonty within 40. Miles in the same manner as the common Clauses in all Charters bearing Coal and Chalk Cuningars or Ducats whether there be any or not and the most the Town can pretend by their Charter is that they being a Burgh Erected within the Barony of Selkirk cum communiis may therefore claim Pasturage with the rest of the Feuars of the Barony but cannot exclude them as to the Liberty granted by the King to Ryve out a 1000. Aikers it clearly evinceth that they had not the Property before neither did that take any effect nor could it because the common Pasturage constitute to the Feuars before would have hindered any posterior power of Tillage As to the Decreet against the Tennents of Haining it is in absence the Heretor for the time not being callâ—d and albeit it bears Hainings Predecessor as Provost to be present that will neither import his Consent nor Knowledge Countrey Gentlemen being then ordinarly Provosts of Towns who lived not with them their Affairs at Law were Managed by their Town Clerk and Baillies though the Provosts Name behoved to be insert neither did this Decreet take effect for Hainings Tennents never ceased to pasture as to the Letters they do only acknowledge the towns Head Rooms because in great Commonties it is ordinar for several proprietars to have peculiar Places most convenient for them where they law their Cattel and casts Fail and Divot and which doth sufficiently consist with the Commonty as for the Acts of Court they can prove nothing against Haining The Lords found that the Town of Selkirk had undoubted Right of Pâ—sturage Fewel Fail and Divot in this Commonty and that they had immemorial Possession thereof without any interruption and found that Haining had no Right by vertue of Possession and Prescription but found that by vertue of his Charter anterior to the Towns Right he had Right to common Pasturage in this Moor it being the Common Moor of the Barony but seing he did not sufficiently prove Possession of Fail and Divot but was therein continually interrupted much more then in the Pasturage and that nothing appeared that in the time of his Original Right the Feuars had priviledge of Fail and Divot Therefore the Lords found that he had no Right thereto albeit common Pasturage doth ordinarly carry therewith Fail and Divot yet they found that it was a several Servitude separable therefrom either by Consent or Custom and found that the Town should enjoy their Head Rooms excluding Haining therefrom Iames Colquhoun contra Watson Eodem die JAmes Colquhoun Pipe-maker in Glasgow having gotten a tollerance from George Blair Heretor of Lunloch to dig Clay for Pipes there for certain years excluding all others there being an anterior Tack of the Lands the Tennents grants licence to one Watson for digging Clay there for Pipes the Heretor also concurrs with Watson Colquhoun pursues Watson for Intrusion and to desist from medling with any Clay there and for paying the value of what he had medled with Watson alleadged Absolvitor First Because the licence granted to the Pursuer being exclusive of all others was contra bonum publicum 2dly The licence was posterior to the Tennents Tack who thereby had Right to the whole profits of the Ground and accordingly gave tollerance to the Defender 3dly The Heretor having granted the Tack could not in prejudice thereof give power to the Pursuer to break the arable Ground and there being much more Clay nor the Pursuer could make use of ought to give power to the Defender to make use thereof for that effect The Pursuer answered that a total and negative licence was legal as well as any other total and sole Right and it was free to the Heretor to grant the same but could do no posterior Deed contrair thereto because he had bound up his own hands thereby â— and as to the Tack whether posterior or anterior to the licence it can only give Right to the Tennent uli fruiut colonus to Manure the Ground and reap the profits thereof but cannot give him Right to any Mineral under the superfice whether Coal Lime-stone Clay c. which is reserved to the Heretor and he may make use thereof which necessarly imports that he may break up the Ground to come at it or else the Right were not reserved to him and he is most willing to satisfie the Tennents damnage by opening the Ground neither needs any reservation thereof be exprest because it s implyed in the nature of the Tack which gives only power of the Superfice Tillage Pasturage and Profits thereof but the Tennent has no power to take away part of the Ground or to give licence to any other so to do The Lords Repelled the Defenses and found the Pursuer had the only Right by the Heretors exclusive licence and that the Tennent by his Tack had no Right to this Clay and that albeit his Tack was prior to the
Pursuers licence he could give licence to no other Mr. Iohn Forbes contra Innes February 20. 1668. MAster Iohn Forbes insisted in the Cause against Margaret Innes mentioned in the 8th of Ianuary last for Mails and Duties as Assigney by Margaret Allardice who being Infeft in Liferent in principal Lands and Warrandice Lands and the principal Lands being evicted she and the Pursuer her Assigney returns upon the Warrandice Lands wherein Margaret Innes is Infeft in Liferent by her Husband who stood publickly Infeft therein upon the Resignation of Margaret Allerdices Husband and who alleadged Absolvitor because the Defender and her Husband being Infeft and in Possession these 20. years past have the benefit of a Possessory judgement and so cannot be put from her Possession till her Right be Reduced The Pursuer answered that the benefit of a Possessory judgement can take no place against a pursuit upon an Infeftment in Warrandice unlesse the Possession had been seven or more years after the Eviction for before the Eviction there could be no Pursuit upon the Infeftment of Warrandice in the same case as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime when the Wife could not pursue The Defender answered that the Pursuer ought in a petitory judgement to have declared the Distresse before he could put the Defender from her Possession The Pursuer answered there was no Declarator required but only the Eviction which gives immediat recourse upon the Warrandice Lands The Lords repelled the Defense and found no need of a Declarator or Reduction to attain recourse and that a Possessory judgement was not compent upon any Possession anterior to the Eviction The Defender further alleadged Absolvitor because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice which is base holden of her Husband and the Defender and her Husbands Infeftment are publick holden of the Superior and albeit posterior to the Infeftment of Warrandice yet is preferable the Infeftment of Warrandice being base never cled with Possession The Pursuer answered that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands especially now when all Seisings must be Registrat as was lately found in the Case of Iohn Scot and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death but her Husband was in full Possession of both which is more then sufficient The Pursuer answered that in Scots Case this was singular that in Iohn Scots Case both the Principal and Warrandice Lands were granted in an Infeftment and so the Person Infeft being in Possession of the principal Lands his Infeftment could not be partly publick and partly privat but this Infeftment in Warrandice is ex intervallo The Lords repelled also the Defence and found the Infeftment in Warrandice though base sufficient the Person Infeft being in Possession of the principal Lands albeit the Infeftment in the Warrandice Lands was ex intervallo Farquhar of Tonley contra Gordoun Eodem die FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion It was alleadged Absolvitor because he had Homologat the Bond in so far as he being Cautioner in the Bond he had pursued releif and obtained Decreet for releif which did necessarly import that he acknowledged himself bound else he could not have craved releif The Pursuer answered that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him against which he could have no objection for the benefit of Reduction upon Minority is peculiar to the Minor himself and no other can make use of it and in his pursuit of releif he might very well have declared that in case he obtained not releif against the principal Debitor he might free himself by Reduction against the Creditor so that Homologation being a tacite consent can never be presumed where the Deed done might have another intent and his pursuit for relief was not to bind himself but to louse himself he did also alleadge that the pursuit of releif was at his Fathers instance and his own promiscuously and after the Decreet was thereupon extracted he gave it in again and took a new Extract which bears not a releif for him of this Debt The Lords found the Pursuit and Decreet of releif to be no Homologation to exclude this Reduction The Defender then offered him to prove that the Pursuer was Major when he Subscribed so that the Lybel and Defence being contrary and great advantage arising to him who had the benefit of Probation by Highland Witnesses The Lords resolved to prefer neither to probation but before answer ordained to adduce such Evidents and Adminicles as they would use to prove the Pursuers age that they might prefer the strongest and clearest Probation Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament and having obtained licence to pursue pursues the Lady Clerkingtoun as principal Executrix who alleadged no Processe upon the licence because licences are only competent to Executors principal before there be any Confirmation after which the Commissars neither use nor may give licence ad omissa as was found the 14. of December 1621. Halliday contra observed by Dury The Pursuer answered that there was more reason to sustain licences after the principal Confirmation when the best of the Inventar was given up and what remained was uncertain and for the practique the Lords had since allowed licences after Confirmation The Lords repelled the Defense and Sustained the Processe upon the licence Bartholomew Parkman contra Captain Allan Eodem die CAptain Allan a Privateer having taken Bartholomew Parkman an Swede he obtained him to be Declared Pryze by the Admiral upon this ground mainly that he had carried Tar being Counterband Goods from Norway to Holland then in Enmity with the King and from thence carried ballast to France and returning with a Loadning of Salt was taken because by the Captains Commission from the Admiral he was warranted to to take Ships carrying Counterband Goods or to take the saids Ships in their immediat return after they have carried Counterband Goods to the Kings Enemies which hath always been the Custom of Scotland as appears by Commissions granted by the Admiral Anno 1627. of the same Tenor and by a Decreet of the Admiral at that time finding the Lybel relevant bearing that a Ship was taken in her return having taken in Counterband to the Enemy in that Voyage which is founded upon evident reason because that while Ships are going towards the Enemy it is but an intention of Delinquence against the King and assisting his Enemies but when they have actually gone in and sold the Counterband it is delictum Commissum and though it might infer a quarrel against the Delinquent
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
Iohn Eleis contra Inglishtoun Eodem die CRichtoun of Crawfordstoun having only one Daughter Disponed his Estate to Iohn Brown of Inglishstoun in contemplation of the Marriage betwixt him and Crawfordstouns Daughter and to the Heirs-male of the Marriage which failzying to certain other Heirs Substitute bearing a power to Burden the Estate with 5000. Merks to whom he pleased and containing a Clause that the Disposition should be valide though not Delivered in his Lifetime and after Inglistouns Marriage Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun and the Heirs of the Marriage which failzying After which words there follows a blank of a Line and a half and the Sum is payable at the first Term after Crawfordstouns Death the intent of which Bonds seems to have been that thereupon Apprizing might proceed to Denude the Heirs of Line and to compel the Superior 〈◊〉 Receive Inglistoun Thereafter Crawfordstoun made a second Tailzy wherein Inglistouns Son with his Daughter being then Born is Feear and several Members of the Tailzy altered and after that he made a third wherein his Daughter Inglistouns Wife is Feear and the Substitutions much like the former After his Death these Papers being Exhibit at the Instance of two of his Daughters Heirs of Line Married to Mr. Iohn Eleis and Alexander Tran upon a Process ad deliberandum and being craved up again from the Clerks by the Tutor of Inglistouns Son It was alleadged for the Heirs of Line that the saids Writs could not be Delivered up because they not having been Delivered by the Defunct in his leige poâ—stie could not prejudge his Heirs of Line and albeit his first Disposition contained a dispensation for not Delivery which ordinarly is accounted sufficient yet where it appears the Defunct altered his purpose both by the posterior Dispositions of a different Tenor and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual and there is no pretence for Delivering the Bond and the two other Dispositions seing they want that Clause It was answerd that the Dispensation with Delivery is in all cases equiparat with the Delivery it self and that the remanent Writs ought also to be Delivered though they bear not that Clause because the Heirs of Line being absolutely excluded by the first Disposition they have no interest to quarrel the other Dispositions and albeit it the posterior Dispositions were to different effects the want of Dispensation therein might make them ineffectual yet where they are but qualifications of the first Tailzy they are accessory thereto and must be Delivered therewith seing the Defunct so long as he keeped the Writ in his own Hand might still alter the same at his pleasure It was answered that the posterior Dispositions wanted the Clause reserving power to the Defunct to leave to whom he pleased the 5000. Merks and it is like he hath left it to his other Daughters and the Bond may be made use of to overturn his whole intent and alter the Tailzy The Lords found that seing the first Disposition contained a Dispensation with Delivery and the rest being accessory thereto and only altering in somethings the Tailzy but still to the first Heir of Tailzy being the Son of Inglistouns Marriage they ordained them all to be Delivered up and the Bond also but with this Declaration that the Provision anent the 5000. Merks in the first Disposition should be holden as repeared in the rest that the Heirs of Line might be in no worse Case then by the first and that the Bond should only be made use of according to the Substitutions and Clauses of the Tailzies Crawford contra Anderson Iuly 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow sometime thereafter William grants Back-bond Declaring the Disposition was upon Trust to the behove of Fleemings Creditors Young being one of the Creditors uses Inhibition and Apprizing against Fleeming and is thereupon publickly Infeft after which William Anderson makes payment to the other of the Creditors the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands Anderson excepts upon his prior Infeftment from Fleeming the common Author upon the said Disposition Crawford replys upon the Back-bond that the said Infeftment is on Trust to the behove of Fleeming Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him and next to the behove of Fleemings Creditors and condescends and instructs that he has made payment to several of these Creditors so that payment made by him bona fide must give him Right to the Trust pro tanto and any Inhibition or Infeftment at Youngs Instance was only against Fleeming and not against Anderson against whom there was never any Action It was answered that the Trust being for payment of Fleemings Creditors cannot be interpret at the option of Anderson which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors but it must be understood to pay the Creditors legitimo modo and not to make voluntar payment to these who had done no Diligence and prefer them to these who had done Diligence and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming yet Anderson who was Intrusted for Fleeming might and ought to have known the same by searching of the Registers appointed for publication of Rights and if he had neglected the same Sibi imputet for he being Trusty for Fleeming could no more prefer Fleemings Creditors then Fleeming himself could do The Lords Repelled the Defense and Duply and found that voluntary payment made by Anderson to Fleemings Creditors after the Inhibition or publick Infeftment of other Creditors did not give him any Right by his Infeftment in Trust to exclude the more timeous Diligence of the other Creditors Street contra Masson and Lord Tarphichen Iuly 27. 1669. IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands publickly holden of the Superior and being a Merchant there was a correspondence betwixt him and Mr. Street and other London Merchants whereupon he gave them Bond mentioning to be for former Accompts and Provisions betwixt them and thereupon followed an Infeftment of Annualrent The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son as being posterior to his Debt and granted by a Father in defraud thereof The London Merchants raise also a Declarator that the Infeftment granted by Masson to his Son then an Infant ought to be affected with their Debt in the same condition as it were yet standing in the Fathers Person or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son the Father being then in tract of Correspondence and Traffick with these Merchants