other papers now produced by the Duke for clearing his interest That the claim of that Honourable Familie was only of the Office of Admiralitie of the Kingdom without any mention of the Isles and much less of Orknay and Zetland in so far as his Majesties Fathers letter 16 June 1628 of which the extract is produced doth bear That he had been pleased to sign a signature In favours of the Duke of Lennox of the Heretable Office of Admiralitie of this his Kingdom And in the Act of Parliament produced of the date 28 June 1633 Mention is made that the deceased James Duke Lennox stood Infeft as Heir to the said Lodovick Duke of Lennox in the Office of Admiralitie of this Kingdom without the least mention of Orknay and Zetland It appears by the Writs produced for the Duke That until the Earl of Mortouns Grand-Father obtained a gift and Right of Orknay and Zetland from his Majesties Father The Duke of Lennox's Right as to the admiralitie of Orknay and Zetland was ever questioned and controverted by his Majesties Officers In so far that upon the last of March 1628 The King did set a Tack of the Earldome of Orknay and Zetland To Archibalâ— Lord Naper Containing a Right likwayes of the Admiralitie within the Bounds of Orknay and Zetland And the Earl of Linlithgow having appeared in behalf of the Deceased James Duke Lennox The said Lord Naper Declaired that he should be ruled as to the said Right of Admirality according as his Majestie should declare his will thereanent whereas if the Dukes Right had been clear and unquestionable neither a Tack would have been set of the Admiralitie of Orknay and Zetland neither woulâ— there have been any Reference made to his Majestie But upon the Earâ— of Linlithgowes appearing and representation of the Dukes Right thâ— Clause of the said Tack as to the Admiralitie of Orknay and Zetland would have been Delet As to Possession the Earles of Mortoun have been in Possession of the Admiralitie of Orknay upon a Gift and Right from his Majesty ever since thâ— Earle of Mortouns Grand-Father obtained the Right of Orknay There is produced for the Duke The double of a Gift granted to the Earl of Linlithgow of the Admiralitie of the whole Kingdom of Scotland and Isles thereof and of the Lieutenendrie Justiciarie and General of the Sea with consent of the Deceast James Duke of Lennox and of his Curatorsf the said Earl being a Confident Person and Relation of the said Noble Familie And without prejudice of the Dukes Right But it is to be Considered that the said Paper is only a Double and not Authentick And the said Right is only Granted dureing the Minoritie of the said Duke of Lennox and is given upon a Supposition and Narrative of the Dukes Right Whereas no Right has been or for any thing that can be seen can be showen That the Dukes of Lennox have Right expresely of the Admirality of the Isles and of the offices of Lieutenendrie and Justiciarie As to the Priviledges and Casualities belonging to the Admiralitie of Orknay and Zetland it is represented that the Priviledges and Casualities of the Admiralitie are not specified nor defyned in any Charter or Record for any thing that does appear the Charter foresaid granted to Lodovick Duke of Lennox in Anno. 1603 bearing only as said is Cum Privilegijs commoditatibus eisdem Spectantibus And the Charter granted to Adam Hepburn Earl of Bothwell in the Year 1511 which is the most ancient Record of Admiralitie that we have seen bearing only the said Office of Admiral Totius Regni to be given to the said Adam Cum omnibus Libertatibus proficuis eschetis ejusdem without mention of the Isles of Orknay or Zetland or specifieing the Liberties and Casualities belonging to the Admirality It Appears by an Act of Parliament Intituled concerning certain abuses of the Admirals proceedings being 156. Act of King James 6th his 12. Parliament that upon pretence of an Infeftment granted to Francis Earl of Bothwell of the Admiralitie of Scotland containing greater Specialities and diverse Clauses which were not in the former Infeftments of Admirality The People being oppressed did Complain and by the said Act it is Statute that the Admiral and his Successors should exerce no Jurisdiction nor exact no Dutie nor Casualitie But that which was in use to be exercised and taken by the Admiral for the tyme before the Death of King James 5th And therefore it is humblie conceived that whosoever shall be found to have Right to the Admiralitie of Orknay and Zetland It is fit that the Priviledges and Casualites of the same be so defyned and cleared that the Fishing Trade and Trafficque be not interrupted nor disturbed And that his Maiesty be not prejudged of his Rents of Orknay It is humblie represented to his Majesties Consideration The Records being for the most part lost which might have cleared his Majesties Interest and the Right of Admiralitie being Granted to the Dukes of Lennox in manner foresaid and neither the Dukes Right nor the Right of Admiralitie granted to the preceeding Admirals being special as to the Isles of Orknay and Zetland and the said Isles of Orknay being the Kings Propertie and feued only to the Earles of Orknay and now Annexed to the Crown and the said Isles being so remote and of so vast an extent and formerlie possessed by the King of Denmark and upon Transactions with the said King which are not very ancient being reunited to this Kingdom Whether or not the Right of Admiralitie granted to the Dukes of Lennox ought to be extended to the said Isles of Orknay and Zetland FINIS THE DECISIONS OF THE LORDS OF COUNCIL and SESSION IN Most Cases of Importance Debated and brought before them from December 1665 to June 1677. OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the principal Matters in the said Decisions As also A List of the Pursuers and Defenders Names EDINBVRGH Printed by GEORGE MOSMAN and are to be Sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII DECISIONS OF THE LORDS OF COUNCIL and SESSION In some Weighty and Important Affairs before them Beginning the 7. of December 1665 and ending the 29. of June 1677. Decision 1st Veatch contra Duncan 7. December 1665. THE Clause cum molendinis multuris importeth freedom from astriction though it be only in the Tenendas Me referente D. 2. Burnet contra Leys 12. Decemb. 1665. THe said Mr Robert Burnet Son to Alexander Burnet of Leys being provided by his Grand-Father Sir Thomas Burnet of Leys his Father having deceased before To the Sum of 10000. Merks to be payed after his age of 25. Years with Annualrent after that time conform to a bond pursued his Nephew Leys for the Annualrent of that Sum at least for an Aliment until he should attain to that age Upon that ground That he could
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour
Executa if there be another nearer to the first Defunct To consider the Civil Law as to Haeres cum beneficio Inventarij If an Executor be not Haeres in mobilibus cum beneficio Inventarij Executor Creditor A Creditor being confirmed Executor and dying before the Testament be Executed Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors in respect of the Diligence of his Predecessor and that Confirmation did affect the Goods for their satisfaction Three Creditors being confirmed for their Respective Debts and one of them deceasing before Sentence Quaeritur Will the Office and benefite belong to the Survivers entirely Ratio Dubitandi A Testament Creditor is a Diligence and there is no other way of Diligence to affect the Moveable Estate of a person deceased and it is equivalent to diligence against Debitors on Life affecting their Moveables And on the other part Executory being an Office the Law preferreth the Creditor If the nearest of Kin do not own it But cum sua causa and so that the nature of the thing is not altered And therefore the Executor dying the Office and Diligence doth evanish Quid juris in the case of an Executor Creditor If after he is satisfied the nearest of Kin will have an Action for the superplus If a Testament be Execute by a Sentence against the Debitors though payment be not made Vide Hope Executor Nominate IF an Executor Nominate be Lyable as a Tutor not only for what is confirmed but what he might have confirmed and intrometted with Tweeddale contra D. of Monmouth Executory WHether Vniversitas bonorum That is an illiquid Right Though the Subject may consist of Moveables as a single Escheat Conquest Society as to a Trade or Shipping Will fall under Executry If Casualities of Ward Liferent Escheat Non-entry Marriage will fall under the same Or to the Superiors Heir There being a Bargain of Lands in nudis finibus contractûs vel Dispositionis will the Price belong to the Heir who must perfect the Bargain Answer It is thought not Seing the Price is a Moveable Sum And it appears that the Defunct having sold the Lands had use for it and did intend to uplift it Whether a Gift of single Escheat will fall under Executry or belong to the Heir Ratio Dubitandi That the Escheat is jus Vniversitatis And nothing is in use to be confirmed but either particular Moveables or Debts and plenishing estimate in cumulo Item Whether a Gift of Liferent Escheat which as to the Donator is a Moveable Interest will fall under Executry Ratio Dubitandi As in the former And likewise that during the Liferenters Lifetime it cannot be construed what it will amount to And it has Tractum futuri temporis The same Question may be as to a Tack Assigned Whether the Heir who has Right to a going Coal will have Right to Buckets Chains and other Instruments as being accessoria and destination addicted to the Coal as the Colliers Or if they will fall under Executry A Person being about the building of an House And the samen being begun and certain Materials as Stone Lime Slats and others being prepared o that use Whether will they belong to the Heir for the reason foresaid or fall under Executry A Daughter having accepted her Tocher and Provision by Contract of Marriage in satisfaction of what might fall to her either by her Father or Mothers Decease The Contract of Marriage being after her Mothers Decease Quaeritur If another Sister will have the Mothers part entire without respect to her Sisters Interest being renounced as said is Ratio Dubitandi That the Father who is Lyable for his Wifes Third is in Effect Discharged as to his other Daughters part of the samen And on the other part the Mothers part belonging to her Children non jure Legitima as Bairns but as Executors and representing her If any of them Decease before Confirmation or be unwilling to confirm their Renounciation will be ineffectual as by a person not having Right Quaeritur If the the Sister who is not Excluded should confirm If the Sister who is Excluded as said is may at least have Action against her for her part of the Mothers part To the effect that the Discharge in favours of her Father may be effectual It is Answered That unless she be confirmed her self she can have no part of that which belonged to her Mother And albeit by the Act of Parliament anent Executors Nominate the nearest of Kin has Action for the superplus of the Deads part exceeding the third That is only in the case therein mentioned the said Act giving Condictionem ex lege in that case only Whereas that Act doth not militate in other cases where there is no legitime but only an Interest to represent which cannot be effectual sine Aditione Confirmation being in effect Aditio in mobilibus Quaeritur If a moveable Escheat will belong to the Executor seing Moveables belong to the Executor and moveable Sums and other moveables fall under the same Answer It is thought that Escheat being Jus Vniversitatis should belong to the Heir Seing not only mobilia do fall under the same but also such Rights and Interests as cannot belong to an Executor as Tacks if they be not Liferent Tacks And it is the stile of Gifts that the Escheat should be holden of his Majesty which does not quadrate and is not proper to be said of such things as belong to the Executor Extent IF the Inquest be warranded to Extend unless there were former Retours upon a Commission to Extend Extinguishment of Rights IF the Heretor of Praedium Dominans acquire the Right of Praedium serviens Whether doth the Right of Servitude extinguish quia res sua nemini servit So that if he sell the Dominans the Servitude doth not revive If the Heretor of Land acquire a Right of Annualrent out of the same Whether or not is the said Right of Annualrent extinguished or suspended only So that it may revive if the Right of Property be taken away by Reduction F. Faculty to alter LAnds being disponed with power to alter without these Words Etiam in Lecto If that Faculty may be used in Lecto A Person having reserved a Power to alter in Lecto May he then use that Power in favours of any other Person than his Heir seing he is not in legitima Potestate as to the disponing an Heretable Interest and on the other Part the Heir has no prejudice Faculty to Dispone BY a Write granted by the Earl of Callender to his Lady he gives her power to dispose of the half of his Estate Quaeritur The said Power being Personal without mention of her Heirs and she not having used the said Faculty If the said Power be Transmissible Found by the Lords That the Earl of Dumfermling as Heir to his Mother had right thereto and he having assigned the same to his Son he recovered
or where the Heir to the Disponer had Right himself the time of the disposition Quaeritur quo casu Jus Superveniens accrescit And if it should be understood of the Right only of moveables and such things as may be transmitted without infeftment And not of Lands and others which cannot habili modo be conveyed much less accresce without Infeftment Justice-General IF the Justice-General may be Judge to Ryots or any Crime or Delict whereof the pain is not defined by Law but left arbitrary K. Nearest of Kin. THE Interest of the nearest of Kin is that they may be confirmed Executors and if they die before confirmation they do not transmitt and yet if the Testament be confirmed by any person nascitur actio against the executor who is Lyable to the nearest of kin which they transmitt There being three persons who are nearest of kin to a Defunct and the edict is moved and served at the instance of the Procurator-fiscal and two confirmed only whether will the third have action against the other two as nearest of kin for a part Ratio Dubitandi That these who are executors of Law cannot have Right de facto unless they confirm that being modus adeundi in mobilibus and the nearest of kin by the act of Parliament has only an action in the case where he cannot adire there being executors nominate and confirmed who have Right to the office and a third part so that the nearest of kin may pursue for the rest When the nearest of kin have action against the Executor Nominate if some of them decease before confirmation whether will they transmitt the forsaid action Ratio Dubitandi it is not Officium but Jus legitimum which may be transmitted as the relicts part and bairns part without respect to the confirmation and on the other part it may seem that seing they did not intent action before their decease they do not transmitt and in such cases the intenting of action is instar aditionis and there is no representation in moveables There being two Daughters of which one being Married by her Contract of Marriage accepts her Tocher in satisfaction of what she could Pretend to by the decease of her Father and Mother Quaeritur the Father having survived the Mother whether will the other Sister have entirely her Mothers part as nearest of kin to her Ratio Dubitandi The other had renounced And on the other part the Mothers part did entirely belong to her self and to her nearest of kin and the said sister that renounced is alse near to her Mother as the other Vide Renunciation Litera R. KING IF the King take burden in a Discharge granted by a Minor that he shall ratify at perfect age Quaeritur whether the Kings successors will be lyable representing their predecessors Ratio dubitandi The King succeeds not as Heir but Jure Coronae as in the case of single incorporations V G Bishops who are said to be successors and are not Lyable to the debts of their predecessors or in the case of feuda ex pacto providentia Cogitandum Earl of Tweeddale and Duke and Dutchess of Monmouth If the King be in the case of other Minors So that a revocation is not sufficient unless a reduction be intented Debito tempore intra quadriennium utile King and Prince IF the King and Prince be to be considered as incorporate so that these who succeed are in the case of successors of Church-men and do not succeed by Inheritance but by succession L. Laudimium LAudimium debetur Usufructuario non Proprietario Thes Besoldi verbo Handlohm P. 359. versus finem Licet Dominus directus post alienationem ab Emphyteuto factam novum possessorem investiat nulla facta mentione Laudimij aut ab eo censum recipiat tamen suo juri non censetur renunciare sed Laudimij integram exactionem habet nisi expresse donaverit Ibid. p. 360. sect 2. Laudimium nondum exactum connumeratur inter fructus pendentes si Emphyteusis pertinet ad parochum illud non exactum ad haeredes haud transmittitur sed cedit ei qui in beneficio succedit ibidem Lawburrows for Burghs IF a Burgh be Lyable to find Lawburrows for their Burgesses The Lord Thesaurer-Deput In Lecto IF in Lecto a Person having children may marrie their Mother in order to their Legitimation in prejudice of his Heirs If after a criminal and capital sentence a person condemned be in Legitima potestate Seing he cannot be said to be in Lecto and the Sentence doth not affect immobilia If a man on death-bed be accessory to Treason whether will his Estate forefault in prejudice of his Heir It seemeth that though in Lecto Lands cannot be sold or annailÈied any way in prejudice of the Heir that being only the case of the old Law of deeds in Lecto Yet consequentially a man on death-bed may do many deeds in prejudice of the Heir and a Traitor on death-bed may be taken out and punished If a Band being heretable may be made moveable of purpose in Lecto Executors of Colonell Mathison George Hadden If an infeftment be given of Lands holden Ward upon the resignation of the Father in Lecto and a reversion apart to the Father to redeem upon a Rose-noble Quaeritur if the Ward and Marriage be cut off Answer if the Lands hold of a Subject Sibi imputet that he did not enquire and know the condition of the Disponer But if they hold of the King there may be some question Seing the Kings Grants may be questioned upon Obreption or Subreption and the negligence of his Officers should not prejudge him and it appears the course forsaid was taken of purpose to defraud the King of his casualities being in spe proxima and the disponer having Provided for himself that he should be master of his Estate by the Reversion forsaid It is thought there is a Decision in the said case in favours of the King which should be tryed A person on death-bed having made a Disposition in favours of a Creditor but to the Prejudice of his other Creditors The Defuncts whole estate being disponed in favours of the Creditor forsaid Quaeritur If the Defunct could on death-bed prejudge his other creditors and preferr one to all his other Creditors Seeing persons being on death-bed are not in Liege Ponstie as to any deeds But the making of Testaments and not as to deeds inter vivos and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained and any deed done on death-bed is upon the matter but a Legacy or codicill and a dying person should not be allowed to do any fraudulent deed and it is a fraud where there are many creditors to give one the whole estate and a person in Lecto cannot Prejudge his Heir and a fortiori ought not to prejudge his creditors who would be preferable to Heirs and as in the
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
Disposition upon the Certification seing the Write was produced and not suspected nor questioned to be false and the Defender did excuse and purge her negligence as said is and the Disposition being in her favours who was sub potestate Mariti and should be defended by him having her self in Law neither velle nor nolle his negligence should not undo her And therefore the Lords having considered also the Difficulties in the Debate upon the Reason they reduced the Disposition in manner aftermentioned by reserving to the Defender to pursue for the said pretended Debts and declared that if she recovered Decreet the Pursuer always being called that there be no collusion the Defender shall come in pari passu with the Pursuer and that the Disposition shall stand to that effect only Both the Parties acquiesced to the Decision D. 81. Cheap contra Philp. eod die MR. Cheap pursued a Reduction of a Disposition made by _____ Philp in favours of Mr. John Philp upon these Reasons That it was subscribed by two Notars and their Subscriptions did not bear de Mandato and because one of the Notars was known to be of so great Age that he had not been for a long time employed as a Notar and that he had only subscribed his Name The rest of the Solemn Words used by Notars when they subscribe in subsidium being writen by the other Notar Therefore another Notar had been also used besides the two Notars And that no respect ought to be given to his Subscription by reason it was ex Intervallo and not uno contextu 2. That the Disposition was in lecto The Lords When the case was reported debated upon the first Reason and in special upon these Points 1. Whether in Subscriptions in subsidium by Notars it be essential it should be exprest That they subscribed ex mandato and if that solemnity may be supplied by offering to prove that the Notars were Rogati It was urged that Minuts and Abbreviations of Seasins might be extended and transumed though none of the ordinary Solemnities be exprest and therefore such Defects and Omissions may be supplyed It was Answered That in Abbreviations Omnia praesumuntur solenniter acta But when an Instrument is compleat or any other Write if it want the Ordinary Solemnities they cannot be supplyed solennitas non praesumitur And being only probable by the Write it self it cannot be made up by Witnesses 2. It was debated Whether a Father or Grand-father could be Notar in a Write or Right in favors of the Son or Grand-child The Lords did demurr upon these Points and thought fit that before Answer as to these the Reason founded on Lecto should be discussed D. 82. Watt contra Halyburton eod die JAmes Halyburton being infeft upon a Comprysing in some Acres in Dirleton did grant a Disposition of the same to Adam Watt whereby he was obliged to infeft him by two Infeftments whereupon the said Adam Watt his Son having Right by Assignation from his Father pursued William Halyburton as Heir to the Disponer for implement and obtaining himself infeft and thereafter to infeft the Pursuer It was Answered That the Disposition was in the hands of Adam Watt by the space of twenty years and that he had made no use thereof and that the Defenders Father had done all that he could for denuding himself of the said Right the said Disposition bearing a procuratory of Resignation and that the Lands holding Ward if the Defender should enter his Ward and Marriage would fall so that unless the Pursuer would warrand him as to that hazard he cannot be obliged to infeft himself The Lords decerned reserving Action to the Defender for Damnage and Interest as accords D. 83. Key contra Fleming 15. June 1667. GEorge Fleming having an Infeftment of Annualrent out of the Lands of Cambo and thereafter having comprysed for his Principal Sum It was Found in a double Poinding and Competition betwixt the said George and Gilbert Key another Creditor of Cambo that the said Gilbert should be preferred in respect of the said Gilbert his Infeftment in an Annualrent That Decreet being suspended Fleming craved to be preferred in respect his Right of Annualrent was before Key 's Right It was Answered That this Infeftment was extinct and taken away by the Comprysing and that he could not now have recourse to it after a Decreet of Preference in foro contradictorio It was Replyed That Decreets of double poinding preclude as to bygones but as to the future all are qualified for any thing that was then seen The Lords were clear that notwithstanding of the Comprysing he might have recourse to his former Right But the great Question was Whether Decreets of Poinding the Ground against a Party compearing did include him so that he could not be heard against Competent and Omitted which the Lords did not decide but recommended to the Reporter to settle the Parties Gibson Clerk D. 84. Home contra the Countess of Murray 18. June 1667. JAmes Home of Beaprie having Assigned to the Countess of Murray the Gift of Escheat of Sir John Kininmouth and certain Debts due by the said Sir John The Lady by her Bond granted that she had got the said Right and obliged her self either to make payment to the said James of the foresaid Sums or to Repone him to his own place The Lady being pursued upon the said Bond alledged that it was null being granted by her during her Marriage without her Husbands consent It was Answered that the desire of the Summonds was alternative either to pay or Repone the Pursuer Et deceptis non decipientibus succuritur The Lords having debated amongst themselves upon the reason of the Law annulling Deeds stante Matrimonio done by Wives and some argued that Women Married are not in the condition of Pupils who have not judicium nor Minors who have not Judicium firmum and that they are Lyable Ex delicto vel quasi and ex dolo The Lords before Answer to the Debate whether her Assertion in the Bond viz. That she had received the Writs mentioned in the same should be Obligatory at least so far as to Repone the Pursuer They Ordained her to be Examined anent the cause of granting the Bond. Gibson Clerk D. 85. Johnstoun contra Cuninghame 19. June 1667. A Bond being granted to a Husband and his Wife and the Heirs of the Marriage which failÈiening their Heirs was Found to pertain to the Husband after the Death of the Wife in solidum And that these words their Heirs ought to be understood Civiliter of the Heirs of the Husband as being persona dignior D. 86. Watson of Dunnykier contra his Vassals 21. June 1667 THE said Watson having Feued certain Crofts with a servitude in his Muir of Path-head to Winn Divots and Clay for Building and Repairing the Houses Built and to be Built by the Vassals pursued Declarator that it should be lawful to him to improve the Muir
before the Sheriff in the interim D. 111. Hay contra Drummond 26. Novem. 1667. IN a Reduction Hay of Haystoun contra Drummond and Hepburn A Seasin being called for The Defenders having alledged that the same being Registrate and they condescending upon the Registration the pursuer should Extract it himself The Lords did debate amongst themselves whether the Defender should be obliged to Extract and produce the Seasin Some were of the opinion that there is a difference betwixt Decreets and Registrate Bonds and such like and betwixt Seasins and Charters which being the Defenders own Evidents and the principals not being in the Registers they are presumed to have them and if they have them not ought to Extract them Others thought that seing Extracts do satisfie the Production in Reductions If the Defenders have neither Principals nor Extracts and be content to make Faith thereupon it were hard they should be at the Charge to Extract them in order to a Process against themselves The Lords did nothing upon the Debate The Lords did resolve and caused intimate to the Advocates That hereafter they would only give two Terms in Reductions and three Terms in Improbations D. 112. DalÈiel contra eod die THE Minister of Prestonhaugh Mr. John DalÈiel pursued for the Teinds of Lanton upon his presentation to the said Kirk and Teinds Parsonage and Viccarage It was Alledged no process unless he were presented to be Prebendar seing the said Kirk is a Member of the Collegiate Kirk of Dumbar and cannot be made appear to be dissolved and Erected in a several Rectory The Lords Found That being presented to be Minister at the said Kirk and to the Teinds which are the patrimony of the Prebendar it is equivalent as if he were presented Prebendar As when there is a presentation to a Kirk which is a Parsonage and to the Teinds the Minister will have Right though he be not presented to be Rector or Parson D. 113. E. of Lauderdale contra Vassals of Musselburgh 5. Decem. 1667. IN a Reduction and Improbation at the instance of the Earl of Lauderdale against the Vassals of Musselburgh and in special Major Biggar and others Heretors and possessors of the Lands of Hill The Lords Found That the Major having produced a more eminent progress and which he alledged would exclude the pursuer no Certification could be granted contra non producta The Defender not being obliged to show any other Writes untill these which are produced be discussed The Lords Found also That the Defenders are not obliged to declare that they will use no other Writes than these which are produced The only difficulty being that the reason of Reduction could not be disputed until the Production be closed and if the Writes produced should be improven or reduced the Pursuer would be put to a new process of Improbation or return and crave Certification after Dispute in Causa which is incongruous in Form The Lords were of Opinion that in the same Process the Pursuer after the discussing of the Writs produced might thereafter crave Certification contra non producta D. 114. Fountain contra Maxuel eod die ALbeit the Lords are tender in Exhibition of Writs unless it be proven that the Defenders had the same the time of the intenting of the Cause or had fraudfully put the samen away before which is difficilis probationis Yet in an Exhibition at the instance of _____ Fountain against Maxuel of Nethergate they decerned to exhibite albeit it was not proven that the Defenders had the Writes at or since the intenting of the Cause In respect it was proven the Defender had medled with the Writs being in a Charter Chest and had offered to Transact concerning the same and so was presumed to have put them away fraudulently There being a great difference betwixt a transient having of Writes and a down right medleing and Intromission which being proven though it be before the intenting of the Exhibition doth oblige the Intrometter to be answerable for the same D. 115. Collector of the Taxation contra the Parson of Oldhamstocks 6. Decem. 1667. IN the Case The Collector of the Taxation contra the Parson of Oldhamstocks a Question was moved whether the Successor in the benefice be Lyable for the Taxation due by his Predecessors his Patrimony consisting most of Teinds But was not decided at this time D. 116. Mr. Rodger Hog contra The Countess of Home 11. Decemb. 1667. AN Inhibition being served upon an Obligement to warrand A Reduction was thereupon sustained though it was alledged there was neither Decreet of Eviction nor Liquidation of distress the pursuit being only a Declarator and the Decreet being only effectual after Eviction and Liquidation which accordingly was declared by the Lords D. 117. Inter Eosdem eod die BEtwixt the same Parties It was alledged that the Defenders Right was ratified by a Creditor who had a Comprysing expired so that the pursuer had no interest to question the Defenders Right It was Answered That the pursuer desired only such Right as was after the Inhibition to be reduced without prejudice of any other which he could not nor was obliged to debate hoc loco The Lords notwithstanding Found the Alledgance Relevant D. 118. Hamilton contra Lord Belhaven 13. Decem. 1667. RObert Hamilton Clerk pursued the Lord and Lady Belhaven to hear and see it declared that a Minute betwixt him and them concerning the Tenor and Articles Lybelled is null the clause irritant therein mentioned being committed The Lords refused to sustain the pursuit unless the Minute were produced Albeit it was alledged there could be no prejudice in respect a Minute of another Tenor could not be prejudged and a Minute of that Tenor Lybelled should be declared void upon the reason Lybelled D. 119. Rioch contra Eod. die AFter Litiscontestation upon an Exception of payment the Defender who was pursued as Lawfully charged to enter Heir Desired to be admitted to renunce which was refused because by the proponing the Defence Gesserat se pro haerede And Litiscontestation is a judicial Contract D. 120. Rannolph Davidson contra Richardson Eod. die A Ship being declared pryse Because the Loadning of Salt belonged to a Frenchman the Skipper and Steersman having declared upon oath that the Loadning was taken in at the Rotchel upon the account of the said Person The adjudication was quarrelled by a Reduction upon diverse reasons and in special these that the Deposition of the Skipper and Steersman were forced and extorted from them and that it was offered to be proven and that it did appear by diverse Letters Certificats and Documents produced that the Loadning did belong to the Owners of the Ship who were Citizens of Dantzick and Hamburg and were not the Kings Enemies The Lords in this Process Found that the Owners may be heard to reduce the Sentence upon reasons omitted by the Skipper 2. It being debated amongst the Lords whether the Skippers Declaration should so prejudge and
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
for the Lady Lockhart and Lermonth D. 162. Lord Hattoun contra Paterson 22. Feb. 1672. THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie to Andrew Paterson and the Gift being assigned to the Laird of Aytoun by the said Andrew a decreet was thereupon obtained against the Representatives of the Earl of Dundie for his intromission with the Goods belonging to the Rebel whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle which was Disponed by the said Laird of Aytoun to the Earl of Argyle Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift pursued the the said Andrew Paterson before the Exchequer upon that ground That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Back-bonds and the Clerks are Discharged to give out the same otherwayes and nevertheless viis modis the said Andrew had surreptitiously gotten out the said Gift and ought to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel and of the Expences in passing the Gift he should denude himself in favours of the second Donator And that it should be declared that the said Gift should be affected with the said Bond as if it had been given ab initio And accordingly the Exchequer did decern and declared Whereupon the Thesaurer deput pursued a Reduction of the said Apprysing against Aytoun and the Earl of Argyl upon that reason viz. That the said Gift which is the ground thereof is restricted and qualified and that the said Andrew Paterson is fully satisfied of what is due to him It was Alledged for the Defenders that the Gift was pure and simple without any Back-bond and therefor the Assigney finding it was such and there being no Back-bond upon record was in bona fide to take a Right to the same And the said Decreet of Exchequer being supervenient and res inter alios acta could not be obtruded against a singular Successor but the Pursuer may have action against the Cedent The Lords Repelled the Alledgnce and Found that the Decreet and Back-bond do qualifie the Gift both as to the Donator and to his Assigney The said Decision appears very hard upon the grounds abovementioned and because Back-bonds are only personal obligements upon the Granters and do not qualifie Rights being extra Corpus Juris And his Majestie in granting Gifts of Escheat single or Liferent is in no other case than other Superiors as Lords of Regality having Right to single Escheats whose Gifts cannot be qualified in prejudice of a singular Successor but by provisions contained in the Body of the Right and the import of Back-bonds is only that the Granters being satisfied should be comptable for the superplus but there is not thereby any tye upon them not to dispose upon the same being comptable for the pryce or value of that which they dispone Colingtoun Reporter Having heard the cause at the side Barr. D. 163. Blair contra Blair 23. Feb. 1672. WItnesses being examined before Answer ex Officio It was desired that seing ex facto oritur Jus and the Lords being unclear to decide in Jure before the point of fact were cleared by probation and the point of Law and ground of their Decision is to arise out of the probation and therefore they may see and debate upon the same which was refused seing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi MckenÈie alteri Lockhart c. D. 164. Neilson contra Elizabeth Arthur Eod. die ELizabeth Arthur being charged upon a Bond granted by her self suspended upon that reason that she was cled with a Husband the time of the granting thereof It was Answered she had a peculium and Estate setled upon her by her Father in these Terms that her Husband should have no interest therein but that it should be manadged by advice of the Freinds named by him for the behoofe of her and her Children And that the Sum charged for was borrowed and employed for her use The Lords Found the Letters orderly proceeded D. 165. Lady Lugton contra Hepburn and Creichton 13. June 1672. A Decreet being recovered before the Commissars of Edinburgh at the instance of the Lady Lugtoun against her Grandchild _____ Hepburne Daughter to the deceast Laird of Aderstoun Modifying 400. Merks Yearly for Aliment of the said _____ Hepburne by the space of 13. Years since her Birth The Lords in a Reduction and Suspension of the said Decreet modified the Sum thereincontained being 3500 Merks to the Tenth part of the Sum of 30000 Merks which was mentioned in the said Decreet and considered by the Commissars as the Estate belonging to the said Hepburne So that in respect and upon supposition of the same they modified the said Aliment And by reason the said Estate was intricate and litigious and possibly could not be recovered The Lords ordained the Pursuer to Assign the Tenth part of the said Estate not exceeding 3000 Merks which was done upon that consideration that the Aliment was modified in respect of the said interest And if ex eventu it should be Found that it could not be recovered and that she had no Estate it were unjust that she should be Lyable personally her Grand-mother being obliged at least presumed to entertain her ex pietate materna if she had no Estate of her own Monro Clerk D. 166. Grott contra Sutherland 14. June 1672. TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part The Lords sustained Action against one of them in solidum for implement of the Obligements in the Contract being facti which is indivisible and they being socii exercitores so that the Fraught might have been payed to one of them and eadem ratione any one of them is Lyable and may be pursued in solidum Gibson Clerk D. 167. _____ contra _____ eod die THE Lords Found That a Declarator of Right which ought to be upon 21 Dayes being priviledged by a Bill which is periculo petentis should not be sustained being execute upon a shorter time And Ordained that the Writers to the Signet should nor insert in Bills and Summonds a priviledge dispenceing with the Law and the solennes induciae thereby introduced in favours of Defenders under the paine of 100 Merks for the first fault and deprivation for the second except in cases which by the Law are priviledged and named The President Advocate and others of their number to meet and consider what these should be D. 168. Henderson contra Henderson 20. June 1672. A Bond being produced to satisfy the production in an Improbation The Lords without further probation did Improve and Decern quoad the Defender in respect he refused to abide by the Truth of the same Gibson Clerk D. 169. Gray of Haystoun contra Forbes and Lindsay eod die WIlliam Gray of Haystoun having granted
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
is but a Reduction for not Production The said Point being of great Concernment and the Debate being upon a Bill and the Process not produced that it might appear whether it was intented within the 40 years or not it was not decided D. 197. Cranston contra Brown 21. Novemb. 1674. A Testator having left by Testament a Sum of Money due upon an Heretable Surety and having named his Sister as Executor and universal Legator she was pursued for payment of the said Legacy at the least that being likeways Heir she should denude her self of the Right of the said Sum. It was Alledged for her That the Subject being Heretable the Defunct could not bequeath the same in Testament It was Replyed That when res aliena is left in Legacy the Executor in Law tenetur luere and ought to redeem the same or pay the value and multo magis in this case the Testator having in effect left res sua though upon the matter res aliena as to the power of disposing of the same on Death-bed or by Testament And therefore the Executrix if she be Heir as she is in this Case ought to give the same and if she were not Heir ought to redeem the same as said is The Lords upon the debate amongst themselves considered that in Law legatum rei alienae is effectual if the Testator sciebat rem alienam whereas si nesciebat it is to be persumed he would not have left that which was not his own and tho the Testator upon mistake was ignorant that it was res aliena yet if the Legator was of so near Relation that it was probable he should have left the legacie at least the value if he had knowen it was res aliena the Legacy was effectual And that in the case in question the Legator was the Defuncts Nevoy by his Brother and the Sum that was left was his own tho Heretable as said is and the Testator either knew that he could not dispose of the same being Heretable and was presumed and obliged to know the Law and if he was ignorant in point of Law ignorantia Juris nocet and therefore the Lords inclined to sustain the Legacy But one of their Number having desired that the Decision might be delayed while the next day that he might have his thoughts upon the Case the same was delayed Strathurd Reporter Mr. John Hay Clerk D. 198. Pilton contra the Creditors of the Lord Sinclair 30. November 1674. THE deceast Lord Sinclair having maryed his Daughter with John Sinclair younger of Hermiston did dispone to him his Estate with the Burden of his own proper Debts mentioned in the Right and took a Bond for an Annuity of 8000 merks first in the name of John Watt and thereafter the said Bond being given back he did take another Bond for the said Annuity during his Lifetime in the Name of George Cockburn of Pilton Whereupon the said George did diligence by Comprysing and otherways against the said John Sinclair of Herdmanston and did also take the said John Sinclair's Liferent Escheat And upon the Grounds foresaid and a Suspension of double Poinding against him diverse Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond as being fraudulent and a contrivance to frustrate Creditors and to secure so considerable an Interest for the use of the Debitor contrare to the Act of Parliament 1621. The Lords notwithstanding preferred the said George Cockburn as having Right to the Duties of Herdmanston's Estate by vertue of the said Gift of Escheat reserving to the Creditors their Declarator of Trust or Reduction upon the said Act of Parliament And accordingly the whole Estate of Herdmanston being set in Tack thereafter the Tack-duty is payable to Pilton and the other Creditors in order conform to the said Decreet The Tacks-men being charged at the instance of Pilton Did Suspend upon double poinding pretending they were troubled by other Creditors of the Lord Sinclair And the said Creditors compearing did alledge that they ought to be preferred to Pilton in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Merks was a fraudulent contrivance in prejudice of the Lord Sinclair's Creditors that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation and thereupon might live plentifully his Creditors being defrauded and suffering in the mean time And that the Gift of Escheat of Herdmanstons's Liferent being granted intuitu and upon account of the said interest laborat eodem vitio and was in effect to the behoof of the Lord Sinclair It was Answered for Pilton That tho the said Bond was granted to him without an Onerous Cause yet intuitu of the same and thinking that he was thereby secured he had bona fide alimented my Lord Sinclair and had payed to himself and had engaged to others for him to pay diverse Sums of Money before any interruption made by the Creditors So that before any Diligence done by them his Right became Onerous and the Gift of Escheat of Herdmanston's Estate was taken by him to secure himself as to his relief And that the King and Exchequer did and might give the said Gift to him upon the consideration foresaid and thereupon in the former Decreet of multiple poinding he was preferred to all other Creditors And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair to Mr. George Gibson upon a Back-bond that thereby he and the other Creditors thereinmentioned being satisfied the superplus and benefite of the said Escheat should be applyed for the Aliment of the said Lord Sinclair And therefore tho Pilton should not have Right as he had to the said Tack-duty the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator to the uses foresaid and fall under his Gift It was Answered for the Creditors That they were content the Lords should modify an Aliment for the Lord Sinclair And that Pilton's interest should be sustained effeirand thereto the Superplus being applyed as it ought to be for their satisfaction The Lords for the most part enclined to Find that George Cockburn's Right to the said Annuity was Onerous In sua far as he could instruct that he had payed to or for the use of my Lord Sinclair any Sums of Money before the Creditors Diligence Yet some were of the opinion That the Laird of Hermanston having Married my Lord Sinclair's Daughter and having given the said Bond for the Annuity dureing my Lord Sinclair's Lifetime was a down-right contrivance contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity which if it had been taken in the person of my Lord Sinclair himself would have been lyable to his Creditors might be so conveyed in the person of another that it should not be lyable to the said Lord Sinclair's Debts and being ab initio fraudulent it
being one of his Lawyers And therefore tho it might be questioned upon Minority as to any prejudice or disadvantage the Minor may pretend to have by the same yet it will stand as an Homologation of the said Bond as to the truth of the same unless it were offered to be improven by a positive qualification of Falsehood The Lords having considered the Inconvenients on either side if certifications for not production of principals should be loosed being the great surety of the People And on the other part if they should be Snares and Parties should pursue maliciously Improbation having viis modis got the principal Writes out of the Register or known they had miscarryed They Found In respect that Mr. David Thoirs having taken a Right after the matter was litigious by a Charge and Suspension of the Minute betwixt Tolquhone and the said John Forbes the Great Grand-child so that the said Mr. David was in the same case as if the said John were Pursuer and was content to state himself in that case And in respect of the Specialities of this Cause and Adminicles and Homologations foresaid that therefore the said Extract ought to satisfy the Production and the Certification ought not to be Extracted D. 211. Pittarro contra E. Northesk 5. January 1675. THE Earl of Northesk having taken an Assignation to a Bond granted by the deceast Laird of Craige and Earl of Dundee to Margaret Carnagie and her Children for 1000 Merks and having Comprysed thereupon Craigs Estate he did after the Comprysing give a Bond to the said Margaret Carnagie and her Children that in case he should recover payment he should make payment to them of the foresaid Sum Sir David Carnagie of Pittarro being Debitor to the said Earl in the Sum of 2000 Merks Suspended upon that Reason that the said Margaret and her Children had Assigned to him the said Back-bond granted by Northesk and that the said Earl had Disponed the Right of the said Apprysing to the Lord Hattoun And therefore became Lyable to pay the said Sum to the Suspenders Cedent and the Suspender may and does compense upon the said Bond pro tanto It was Answered by the Charger That the Comprysing did neither belong to the Suspenders Cedent nor was to their behoof the said Bond granted by the Laird of Craig being Assigned ab initio without any Back-bond And the Comprysing being deduced before Northesk granted the said Bond And by the said Back-bond he was obliged only to pay the said Sum in case he should get payment and he was so far from getting payment of the said Sum that having comprysed not only upon the said Bond granted to Margaret Carnagie but for other Debts exceeding far the said Debt due to her yet got payment of neither It was Replyed by the Suspender That he was not concerned to Dispute whether he got payment or not but the Charger having Disponed the Comprysing as to the said Sum without the consent of the said _____ Carnagie and her Children and without the Burden of the said Back-bond it was equivalent as if he had got payment it being all one upon the matter as to the interest of _____ Carnagie whether Northesk had got payment of the said Sum or had disponed the Comprysing in sua far as concerns the same The Lords In Respect of the conception of the Bond granted by Northesk Found That either he should procure a Retrocession of the said Bond and Comprysing thereupon pro tanto or that he should pay the Damnage and Interest sustained by the Suspenders Cedent through Northesks granting of the Right of the said Bond and Comprysing to Hattoun And in that case that the Damnage and Interest should be presently liquidate and being liquidate should be a ground of compensation Glendoich Reporter Monro Clerk D. 212. Eod die IT was debated this day among the Lords whether a Bond being granted by a principal and two Cautioners bound conjunctly and severally and the Cautioners not bound to relieve one another if one of the Cautioners should take Assignation to the Bond and should pursue the other the said other Cautioner will have a defence upon that Ground That albeit they be not oblidged to relieve one another pro rata yet that the said obligement inest in sua far as they are bound conjunctly and severally Most of the Lords enclined to find that the pursuer ought to relieve the Cocautioner pro rata and had not action but for his own part But some of the Lords were of another opinion that there being no obligement upon any of the Cocautioners to relieve one another one of the Cautioners paying entirely and getting an Assignation in effect emit nomen And tho both the Cautioners be oblidged conjunctly and severally in relation to the Creditor yet there is no Transaction or obligement betwixt the Cautioners themselves every one having actio mandati as to the principal for their relief which inest tho the principal were not bound to relieve them expresly but ought to be considered as quilibet and Strangers one to another But because the Lords were divided and it was alledged on either hand the case was formerly decided the Decision was delayed this day Vide infra 28. January 1675. D. 213. Laird of Hempsfield contra Bannantine eod die THE Laird of Hempsfield with certain Cautioners for him having granted a Bond of 6000 Merks to the deceast James Bannantine and his Wife the longest liver of them two and after their decease to John Bannatine their Son whereupon Inhibition was execute against the principal and Cautioners And the said John Bannantine did pursue a Reduction and Improbation against these who had acquired Rights after the Inhibition It was Alledged That the Pursuer had no interest because the said Bond was Blank in the name of the substitute and the pursuer could not be understood to be the Bairn to whom the Sum is to be payable after the decease of his Father and Mother seing he was not born the time of the granting of the Bond And as to the Inhibition it was not at the instance of the Pursuer but of his Father and Mother It was Answered That the Bond was opponed bearing the Pursuers Name and tho the Bond had been Blank and the Pursuer not born when it was granted the Father might have filled up any of his Bairns Names as he thought fit And as to the Inhibition it was at the instance of the Father James Bannantine who was Fiar and did accresce to the Pursuer being substitute in the Fee after his decease The Lords Repelled the Alledgance It was thereafter Alledged That the Pursuer was satisfied of the Debt in sua far as either the Debitor or Cautioners had payed the same at least a part thereof and did satisfy pro tanto or some other persons having acquired their Lands after the Inhibition had given Money to the Pursuer or his Father to pass from the
Inhibition as to them which ought to be allowed as payment pro tanto It was Answered That the Alledgance is not Relevant unless it were in these Terms that the Pursuer or his Father had accepted what was payed by the saids persons in satisfaction of the Debt pro tanto otherwayes that there is no solutio but only a Transaction betwixt the persons foresaid and the Pursuer to free themselves from Trouble and of a Plea and what was given was not in satisfaction of the Debt in whole or in part but upon the account foresaid And seing the Creditor having inhibite so that his Inhibition did affect diverse Lands or having diverse persons bound to him as Cautioners might warrantably pass from his Inhibition as to some of the Lands and discharge such of the Cautioners as he thought fit he might also take a consideration for doing the favour foresaid The Lords thought That if it should be allowed to Creditors to make such Transactions and what they should get upon account of the same should not be allowed in payment they might get more nor the double of their Debt at least more than Principal and Annualrent and that it would be the occasion of usury They Found the Defence Relevant that what should be proven to be given eo nomine should be imputed in satisfaction Gibson Clerk D. 214. Innes contra Innes 7. January 1675. BY a Contract of Marriage a Sum being provided to the Husband and his Wife and to the Heirs Male of the Marriage whilks FailÈieing to the Fathers Heirs Male whatsomever An Inhibition upon the said Contract at the instance of the Eldest Son of the Marriage and Reduction thereupon was not sustained because the Father was living and the Son neither was nor could be Heir to him In respect the Father was living And tho he were dead the Son could have no Right unless he were Heir in which case he would be obliged to warrand Glendoich Reporter D. 215. Laird of Luss contra E. of Nithsdale eod die A Bond being alledged to be granted by the Earl of Nithsdale in anno 1621 to one Colquhone and his Wife for 6000 Merks And a pursuit being intented thereupon It was Alledged That the Bond was most suspicious being so Ancient and nothing done thereupon and in respect of other great presumptions viz. the quality and condition of the said Adam when the said Bond was granted being designed the Earl's Servant And that it was improbable he could have so much Money to lend his Master or that he and his Heirs should have so long wanted the same And that it appears that the Bond has been Blank ab initio the Creditors Name being filled up with another Ink And the said Adam being designed to have been the Writer of the Bond and yet where it bears that he is Writer it does not bear the said Adam which it would have born if his name had been filled up from the beginning And it appears that the Earl being known to be a person negligent and being at London for the time and having to do with Money might have given the Bond to the said Adam his Servant for raising of Money and that he forgot to call for it The Lords Found That the said Bond could not be taken away upon the presumptions foresaid unless it were either prescrived or the Defenders would offer to improve it Gibson Clerk D. 216. Mcintoish contra Frazer 9. January 1675. McIntoish pursued Frazer of Streichen for payment of a Sum due upon Bond In which Pursuite two Defences being proponed viz. Prescription and Payment and a Reply made to the first viz. Interruption by a pursuit and Litiscontestation being made upon the Defence of payment and the said Reply It was Alledged when the Cause was to be advised contra producta viz. That the Summonds and Execution thereupon produced for proving Interruption did not prove the same In respect the Summonds were never called nor any Document taken in Judgment thereupon And as to the Discharge produced It was Alledged That it was granted by the persons thereinmentioned as Curators to the Pursuer and was not subscribed by the Pursuer himself as it ought to have been there being a great difference betwixt Tutors and Curators In respect Tutors must act for the Minor and are Authors as to all deeds done by them but Curators do only concurr and ought to advise and consent to the deeds of their Minor which otherwayes are not valid The Lords did Find the Discharge did not prove and it could not be obtruded to the Pursuer who had not subscribed the same and did also Find that the Summonds and Execution did sufficiently interrupt Concluded cause Actor Falconer alteri Seaton Monro Clerk D. 217. Town of Edinburgh contra Earl of Loudoune eod die THE Lady Yester having Mortified a certain Sum of Money for the Poor in certain Paroches in the South and having employed to the End foresaid the foresaid Sum upon Bond or Contract granted by the Town of Edinburgh The Ministers of the said Paroches did pursue the Town of Edinburgh to hear and see the Tenor of the said Write to be proven and that being done that they should be decerned to pay And did sufficiently prove the Tenor of the same In the Process against the Town There was a Defence proponed viz. That my Lord Loudoune who had Interest in the said Mortification had got payment of the said Sum from the Town of Edinburgh which they offered to prove by his Oath The Lords having Ordained his Oath to be taken before Answer And he being Summonded to that effect he was holden as confest And having thereafter upon a Bill Desired to be Reponed to give his Oath and being Reponed he was holden as confest the second time And in respect that the said Defence was not proven by his Oath The Lords proceeded and decerned against the Town The Town of Edinburgh having intented Process against the Earl of Loudoune for refounding the said Sum upon that medium that the same was formerly payed to him and that he had confessed at least was holden as Confest which is equivalent as to the payment of the said Sum. It was Alledged That his being holden as Confest in the Process foresaid did operate only that the Defence referred to his Oath was not proven but could not be a Ground of pursuite against himself unless it were proven by his Oath that the said Sum was payed to him and he desired to be Reponed to his Oath It was Answered That he being twice holden as Confest there was no reason to Repone him and his being holden as Confest doth operate in Law alsemuch as if he had confessed the said Sum Seing through his Contumacy the Pursuers are prejudged And he cannot pretend that he was not a Party in that Process seing he was holden as Confest and in the same Process craved to be Reponed and was Reponed as said is And tho he had not
been called ab initio in that Process yet being called incidenter for proving of an Alledgance by the certification foresaid he became Partie therein And as when an incident Diligence is raised against a haver of Writes for proving of an Alledgance and the having thereof is referred to the Oath of the Defender in the incident if he be holden as confest tho the Alledgance be not proven the Pursuer of the Incident will have Execution against him as Haver and for the Damnage and Interest sustained through his Contumacy so it ought to be in this case The Lords Tho the Earl of Loudoun's presumptive Confession being holden as confest as said is be a convinceing evidence that the said Money was payed to him yet they had that respect to him both as to his quality and integrity that they would have Reponed him if he had compeared himself or had written to the Lords that he desired to be Reponed and did intimate alse much to his Procurators and to that effect did give some time but no Return being made they proceeded and sustained the pursuite at the instance of the Town of Edinburgh upon the medium foresaid Monro Clerk D. 218. Letter by the Lords of Session to the King 12. January 1675. MY Lord Lauderdale His Majesties Secretary having writen to the President concerning the abovementioned Process betwixt Captain Gordon and the Suedes anent the Ship called the Wine Grape That the Suedish Envoy had made Application to his Majesty and had represented That the Decreet against the Strangers was caryed but by two Votes and had given in a List to his Majesty of those that were for and against the said Decreet with diverse Reasons against the same It was thought fit that a Letter should be drawen to His Majesty containing the Grounds whereupon the said Decreet proceeded which being done by those who were appointed by the Lords some of the Lords did object against the same That they did mention the Lords indefinitly to have given the said Decreet Whereas His Majesty was informed of the contrary and the Information was true and therefore it was desired it should bear That upon the Votes of the major part which is usual in all Cases the Decreet was pronounced Specially seing the said Letter did containe the Grounds of and did assert the Justice of the said Decreet So that these who had voted against the same could not belye themselves and put under their hand the contrarie of what they had voted And albeit in all Judicatories even in Parliament what is done by the plurality doth overrule and conclude the Dissenters so as to submitt to the same Yet they are not obliged to maintain or assert the Justice of a Sentence and Act that they had been against in their Judgment and vote It was notwithstanding carryed by plurality That without the amendement foresaid the Letter should be subscribed by all the Lords the President having promised to write to my Lord Lauderdale what was truly res gesta when the said Decreet was given And upon that assureance some of the Lords declared when they subscribed that they subscribed not their oun sense but the sense of the Court And though they were concluded as said is yet they were not convinced D. 219. Glendyning contra the Earl of Nithsdale 13. January 1675. WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan from whom the Pursuer had Right and for payment of the half of the duty of the Lands of Douphingstoun conform to the said Minut and Litiscontestation was made in the cause and for proving the rent of the saids Lands of Douphinstoun It was craved that the Depositions of witnesses that had been adduced in the like process intented against the said Earl as representing his Father for implement of the said Minute should be received in this Process But the Lords having considered that the said Earl did not represent his Father active but was pursued only upon the passive Titles and that this process against the now Earl is not against him as representing the last Earl neither was it alledged that he represents him Therfor they Found that the said Depositions could not be repeated in this process Seing res was inter alios acta and acta in uno judicio non probant in alio nisi inter easdem personas or these who represent him D. 220. Edmiston contra Mr. John Preston eod die WAuchope of Edmiston and his Lady as Executors to the deceast James Raith of Edmiston pursued Mr. John Preston lately of Haltrie Advocate for payment of the Tack duty for a Seam of Coal belonging to Edmiston and set to him for certain Years It was alledged for the Defender That he ought not to be lyable for the Years in question because having entered to the Possession of the said Coal and having payed the Duty for the time he possessed he was forced to cease from working in respect the said Coal came to be in that condition that it could not be wrought partly by reason of the defect of Roof so that the CoalÈiers neither would nor could work without hazard and partly by reason of bad Air It was Replyed That the Defender having accepted a Tack of a Subject lyable to such hazards eo ipso he had taken his hazard and was in the case as if he had acquired a Right to jactus retis It was Duplyed That alea and jactus retis and spes in venditione may be and is understood to be sold but in Locatione spes and alea is not thought to be set unless it appear by the Contract that the Conductor should take the hazard seing it is de natura of Contracts of Location that fruitio is understood to be given and set and that merces should be payed ex fructibus And where the Conductor cannot frui upon occasion of an insuperable impediment which does not arise either from his dole or culpa or negligence as in this case remittitur merces as is clear not only when the thing that is set is a subject not lyable to so much hazard but when it is contingent as when Gabells or Custums are set or Fishings or Milns or Coals if there fall out such an impediment as doth interrupt the fruition and perceptionem fructuum as if there be Pest and War in the case of Custums or if Herring should not be got at all or if upon occasion of inundation Milns should be unprofitable or Coal-heughs should be drowned or burnt The Lords before Answer Thought fit that there should be conjunct Probation allowed to both Parties anent the condition of the Coal and the Defenders desisting and ceasing from working thereof and the Occasion of his desisting and if the impediment was insuperable Craigy Reporter D. 221. eod die APPlication being made to the Lords
the same to be transported to Scotland and in the interim War having arisen the Ship and Goods were taken by the Dutch and that he had done for the Pursuer as for himself and as other Merchants had done for themselves Which Oath being advised It was debated amongst the Lords whether the Defender should be Assoilied in respect of the Oath and qualification foresaid And It was Found that albeit the Defender might be excused upon the account foresaid for not going to Bourdeaux and fulfilling his Commission in terminis yet as to the of the parcel of Cards with the product of the Salmond and the embarqueing of the same for the Pursuers use for which he had no order he was to be considered as negotiorum gestor and upon his own hazard and could not prejudge the Pursuer by disposing of his Money unless he were able to say that gessit utiliter both consilio eventu specially seing he might have secured his Money in Factors hands or transmitted the same by Bills of Exchange without employing or far less hazarding the same without order Mr. Thomas Hay Clerk D. 260. 8. June 1675. THE Lords yesterday did Order that in regard of the great abuse in desiring and granting Advocations so frequently from Inferiour Courts to the great prejudice of the People and the retarding and delaying Justice that therefore the Ordinary upon the Bills may refuse to pass Advocations if he find cause but that he ought to report all Advocations before they be past to the whole Lords D. 261. Kyle contra Gray eod die THIS Day the Lords Found That Advocations for Sums of Money within 200 Merks could not be past upon any reason of Iniquity Castlehill Reporter Some of the Lords in the case foresaid were of Opinion that Advocations should not pass tho the Process had been for a Sum above 200 Merks Because Litiscontestation had been made in the Cause and after Litiscontestation there can be no Iniquity but by a Decreet which ought to be Suspended without Advocation D. 262. Grant contra Grant 10. June 1675. IN the Improbation of a Bond the Bond being produced and the Defender refusing to abide by the same Certification was craved against the said Bond because the Defender did not abide by the same And the Lords were clear that the Certification should be granted for not abiding by the said Bond tho it was produced but because the Witnesses in the Bond had been examined and there being only two Witnesses to the same they both declared that they were impuberes the one of 8. and the other of 9. Years of Age the time of the subscribing of the Bond and the Subscription was not like the Subscription now used by them and to their remembrance they were not Witnesses to the same but were not positive that they were not Witnesses The Lords in respect of their Declarations and that the Defender himself did in effect at least presumptively acknowledge the falsehood of the Bond in sua far as he did not abide by the same Had an Impression that the Bond was false and therefore they granted Certification for not abideing by the same and did leave to the Pursuer either to take out the Certification or to insist in improving of the Bond or for declaring the same Null as wanting Witnesses as he should think fit Seing without question tho the Witnesses did not fully improve it yet in respect of their Age the time of their pretended subscribing the same and by their Declaration they did not astruct the Truth of the same In which respect the Bond ought to be constructed and looked upon as wanting Witnesses and so Null Mr. Thomas Hay Clerk D. 263. Scot contra Murray 11. June 1675. A Suspension being raised of a Decreet Arrestment was used at the instance of the Creditor after the raising of the same and upon that pretence It was craved by the Suspender That the same might be loosed and upon the Report of the Bill the Lords having debated Whether the said Arrestment could be loosed being upon a Decreet though suspended The Lords Found That tho a Suspension be raised of a Decreet yet it does not cease to be a Decreet until it be taken away by a Decreet in favours of the Suspender and that tho a Suspension sists execution yet the Creditor may arrest seing the Arrestment is no Execution but a Diligence and Remedy to preserve the Debitors Estate to the effect that after discussing of the Suspension the Creditor may have execution against the same And therefore They Found the Arrestment could not be loosed In this case the Suspender had consigned the Principal Sum but not the Annualrents otherwayes if he had consigned all the Lords would have loosed the Arrestment seing the Consignation of the Money is sufficient Surety to the Creditor Mr. Thomas Hay Clerk D. 264. Auchenleck contra E. Monteith 15. June 1675. WIdow Auchenleck pursued the Earl of Monteith for the price of certain Ware for his Ladies Cloaths extending conform to an Accompt to the Sum of 177. lib. It was Alledged for the Earl That the said Ware was furnished after he had served Inhibition against his Lady that she should not contract Debt to his prejudice Whereunto It was Answered That the said Furnishing was necessary for the Ladies Cloaths and albeit after Inhibition she could not contract Debt to her Husbands prejudice yet the Earl being obliged to furnish her Cloaths and other Necessaries he will be lyable for what is furnished to her necessarily The Lords upon the Report of the Debate foresaid having considered the Inhibition and that the execution of the same was not registrate were of the Opinion that the said Inhibition was Null But because it was not questioned by the Defender they Ordained that the Reporter should hear what Answer the Defenders Procurators could make as to the said Nullity It was thought hard by some of the Lords That a Merchant after Inhibition at the Husbands Instance furnishing bona fide to the Wife should be frustrate upon the pretence of an Inhibition unless either the said Inhibition had been intimate to the Merchant or it were notourly known that the Wife was Inhibited seing such Inhibitions are granted without any Ground either of Write as Bond or Contract or the dependance of a Process but only upon a Bill and Desire of the Husband sine causae cognitione And it were hard That Merchants when Persons and Ladies of any Quality come to their Shops for buying their Ware should go to the Registers and try whether they be inhibite but these Points were not decided D. 265. Katharine McMillan Lady Logy contra Meldrums 16. June 1675. A Disposition being granted by a Husband to his Wife of Moveables and she in an Improbation of the same being urged to abide thereat and offering to abide at the same as a Write truly delivered to her by her Husband The Lords Found That she ought to abide at the
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
gratuitously Disponed his Estate In praesentia D. 334. Gibson contra Fife 12. February 1676. A Woman having lent 100 Merks upon a Blank Bond and the same being lost The Debitor was pursued for payment of the said Sum and did confess that he had truly borrowed the Money and granted the Bond Blank and he was willing to pay the same being secured against any pursute at the instance of any person who might have found the said Bond and filled up his own name therein The Lords thought the case to be of great difficulty and import as to the preparative that practice of granting Blank Bonds having become too frequent And resolved in this case to take all possible Tryal by the Debitors Oath and otherwayes of the date and Writers Name and the Witnesses in the said Bond And thereafter to ordain the Debitor to pay upon surety that the Pursuer should relieve him of any Bond that should be found of that date and Sum and writen and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk D. 335. Anderson contra Lowes 15. February 1676. THE Lords in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Write thereinspecified proven by the Adminicles thereinmentioned In praesentia D. 336. Marshal contra Forrest and her Husband eod die IN a pursute at the instance of a Minor against his Tutrix The Pursuer having referred to the Tutrix Oath that she had intrometted with diverse particulars belonging to him The Husband of the Tutrix Alledged that she could not declare in his prejudice It was Replyed That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix he could not be in worse case as to modum probandi by the Tutrix her superinduceing a Husband And that the Intromission of a Relict after her Husbands decease being such as to Money Bonds and many other particulars as could not be known to any person but to her self nor proven but by her own Oath It were hard that the Minor should be prejudged of his Probation by her own Deed And the Husband is not in the case where a Debt is only to be constitute by the Wifes Oath seing the Ground of the Debt is constitute by Write viz. By the Nomination or Letter or Tutory And when there is a pursute against any person that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath and the Minor is more priviledged seing by the Common Law Minors have a tacite hypotheck of their Tutors Estate and by our Law they ought to be favoured at least so far as it should not be in the power of the Tutrix to ruine them by convoleing ad secundas nuptias ante redditas rationes The Lords thought the case considerable And Ordained the Tutrix to declare Reserving to themselves to consider what her Declaration should import Forret Reporter Gibson Clerk D. 337. E. of Dumfermling contra the Earl of Callender 16 February 1676. THE Earl of Dumfermling having Right by Assignation to the Obligements contained in the Contract of Marriage betwixt the deceast Earl of Callender and his Grand-mother in swa far as the same is in favours of the said Lady pursued the said Earl of Callender for Implement of the said Obligements and the Lord Almond now Earl of Callender as having gotten a Right to the said Earl of Callender's Estate with the burden of his Debts and the said Earl in the interim having deceased did insist against this Earl of Callender For whom It was Alledged That the Process ought to be transferred against some representing the said Earl of Callender as Heir of Line or otherways And tho the Pursuers Procurators declared they insisted only against Callender for a Declarator that the Estate disponed to him should be affected with the foresaid Obligement It was urged for Callender That the said Earl's Heirs ought to be called Seing the Declarator against him being a singular Successor that his Lands should be affected was only a subsidiarie Conclusion and could not be sustained before the Debt was constitute and the Debt could not be constitute unless the pretended Debitor or some representing him were called The Lords notwithstanding Found Process and that there were no necessity of calling or transferring against the Heirs of the Debitor Actor Sinclar Bernie and others alteri Lockheart Monro Clerk In Praesentia D. 338. Doctor Borthuick contra the Earl of Crawfurd eod die THE Earl of Crauford having borrowed 8000 merks from the Mother and Grand-mother and two of their Children for themselves and in name and behalf of their said Children he is obliged by his Bond to infeft the said Mother and Grand-mother in Liferent and the said Children in Fie in an Annualrent out of certain Lands but by a mistake the Precept of Seasin contained in the Bond is in favours only of the Mother and Grand-mother and for infefting them as Fiars of the said Annualrent and accordingly they are infeft And yet thereafter the said Mother and Grand-mother acknowledging that the said Infeftment was so taken upon mistake did by a Disposition bearing the Narrative foresaid dispone the Fee in favours of the said Children and there was a Pursute intented at their instance against the said Earl of Craufurd for poinding of the Ground Wherein It was Alledged That the Mother and Grand-mother being only Lifrenters could not resign the Fee which they had not and if the Pursuers made use of their Right from them the Defenders ought to be assoilÈied because the Mother and Grand-mother by a Transaction betwixt the said Earl of Crawfurd and them had accepted the time of the Englishes a parcel of Lands in satisfaction of the said Debt The Lords Found notwithstanding of the said Alledgance that the Pursuers ought to have process for poinding the Ground In respect the Mother and Grand-mother had de facto the Fie in their person upon the said Precept and Seasin And the same being given indebite as said is they might have been compelled to denude themselves thereof and therefore might voluntarly and accordingly did denude themselves thereof and the said Transaction could not prejudge them seing they derived their Right from the said Persons qualificate in respect of their Interest and Error foresaid and they might have been compelled to give the same and the Earl of Crawfurd was not in bona fide to contract with them Seing by the Bond granted by himself they were only Fiars and the other but Liferenters Actor Lockhart and Beaton alteri Cuningham and Suinton Clerk in praesentia D. 339. Doctor Hay contra Alexander 17. Febr. 1676. DOctor Hay his Case 28 January 1675. supra resumed and taken to consideration this day And tho some of the Lords considered that it was hard to canvel Certifications in Pursutes of Improbation after a long Dependence and diverse Terms given to produce and delays of Extracting
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
Right as said is both before his own Right and after the same and before the interest of Creditors he did in effect ratify and homologate the same by making payment conform thereto as said is The Lords In Respect the case was of moment as to the Preparative Ordained that it should be Debated amongst themselves And upon the Debate they decided these points 1. That the said Act of Parliament K. Ja. 5th being general and there being no Exceptions of Infeftments of Relief the said Act is comprehensive of the same 2. Tho the Act of Parliament anent Registration of Seasings does secure Singular Successors yet the said Act of Parliament K. Ja. 5th is not taken away tho in in some cases the Lords are apt to favour prior Infeftments where there is no presumption of Fraud And therefore when there is any pretence of Possession as in the case of Infeftments of Warrandice they Found that fictione Juris the Possession of the principal Lands is the possession of the Warrandice 3. That albeit Mr. Patrick could not question Cramonds Right for the Reason foresaid yet the Comprysers being Singular Successors may question the same The Lords therefore preferred the Creditors And yet sustained Cramonds Infeftment In swa far as concerns the Sum foresaid due to himself and not as to Cautionries In respect the said Discharge was only of the Annualrent of the Sum due to himself This Decision appears to be hard upon these Considerations First Because Cramonds Infeftment tho base as to the point of Right by the Common Law is preferable And as to the said Statute it introduces only a praesumptio Juris that base Infeftments not cled with Possession are presumptively fraudulent And the Question whether Cramonds Infeftment was fraudulent was to be considered in relation to Mr. Patrick and his Infeftment and not to his Successors And the said presumption was taken away by Mr. Patrick his Deed foresaid having corroborate as said is Cramonds Infeftment which was verified by a Write Subscribed by Witnesses and which was was Found to militate even against the Creditors and to cloath Cramonds Infeftment with Possession 2. Cramonds Right being Jus individuum tho upon distinct Grounds it could not be fraudulent and private ex parte and ex parte publick Actores Sir John Cuninghame c. alteri Lockheart In praesentia D. 462. Mr. John Kincaid contra Gordon of Abergeldie eod die MR. John Kincaid having pursued Gordon of Abergeldie as representing his Father by Behaving His Defence was That he had Right by an expired Comprysing whereby his Father was denuded so that he could not be Heir to him But in the same Process in respect a Reduction and Declarator was intented at the said Mr. Kincaid's instance within ten Years after the appearand Heir had purchased a Right to the said Comprysing The Lords tho there were no Order used did simul semel sustain the said Processes and appointed Compt and Reckoning and Auditors FINIS ERRATA in the Decisions PAge 4. lin 15. read rata p. 9. l. pâ—nult Pursuer 1 Person p. 15. l. 29. Laird of r. Lord. p. 17. l. 17. after him add but. ibid. l 26. after of add â— p 33 l 7. after Goods add The Reason was found relevant p. 35. l 21. r. conclude p. 37. l. 5. have 1. give p. 50 l. 9. after we add no. p. 51. l. 38. most r. more p. 54. l. 9. after anterior add to the Sones Right p. 58. l. 35. after Right add till p. 65. l. 11. purchase 1. possession p. 73. l. ult yet 1. so p. 74. l. 37. after to add an p. 75 l. 35. D ctor 1. Granter p. 84. l. 22 after confirmable add Quots of Testaments confirmed before the Act restoring Quots to the Bishops p. 85. l. 18. due r. done p. â—9 l. 18. after by add Writt or p. 105. l. 11. Donator r. Executor p. 108. l. 27. â—eu-duties r. Augmentations p. 111. l. 43. after Creditor add confirmed before the Act of Sederunt p. 17â— l. antep after flagitanti add â—eculaâ—e non potuit INDEX OF THE Pursuers and Defenders NAMES Mentioned in the foregoing Decisions A. ABercrombie contra Page 19. Abercrombie contra Atcheson and Livington Page 162. Aberdeen Colledge contra the Town thereof Page 130 133. Aberdeen Colledge contra Page 157. Abernethie contra Forbes Page 159. Act of Sederunt anent proponing Alledgances Page 74. Act of Sederunt anent liberation of Prisoners Page 114. Act of Sederunt anent Advocations Page 126. Advocats their â—â—int Petition Page 106. Aetskine contra Rynolds Page 164. Allan contra Campbel Page 28. Anderson contra Tarbet Page 56. Anderson contra Lowâ—s Page 149 160. Antrobus contra Anderson Page 32. Ardblair contra Wilson Page 214. Argyle Earl contra L Mcdonald Page 197. Argyle contra Menaughtan Page 203 213. Armstoun Lord contra Murray Page 153. Auchinleck contra E Menteath Page 127. Auchintoul contra Innes Page 88 B. BAillie contra Somervel Page 210. Bairdner contra Collier Page 142. Balmedie contra Baillies of Abernethie Page 54. Balmerinoch contra Tennents of Northbervick Page 90. Banchries Parochiners contra their Minister Page 124. Barclay contra Arbuthnet Page 151. Bavilay contra Dalmahoy Page 210. Bayne contra Carvie Page 71. Bernie contra Page 57. Bernie contra Montgomerie Page 137. Binnie contra Binnie Page 56. Binnie contra Sâ—ot Page 115. Binnie contra Brotherstones Page 124. Binnie contra Gibson P. 221. Binnie contra Farquhar P. 19. Bishop of Edinburgh his Executors contra the present Bishop P. 83. Bishop of Dumblain contra Kinloch P. 185. Bislet contra Broun P. 10. Blackwood contra Pinkill P. 221. Blair contra Blair P. 67. Blair contra Kinloch P. 151. Blair contra Fouler P. 182. Blantyre contra Walkingshaw P. 6. contra Blantyre P. 14. Bogie contra Executors of the Lady Oxford P. 73. Boid contra Storie P. 76. Bonars Relict contra his Representatives P. 141. Borthwick Lord contra Ker. P. 15. Borthwick Doctor contra E. Craufurd P. 161. Bowie contra Hamilton P. 18. Broun contra Veatch and Scot. P. 7. Broun contra Ogilvie P. 116. Bruce contra Bruce P. 132. Bryand contra Grhame P. 6. Buâ—hanan contra Logie P. 181. Burd contra Reid P. 118. Burgie Lady contra Strachan P. 39. Burnet contra Leyes P. 3. Burnet contra Johnston P. 9. Burnet contra Lutgrue P. 115. Burnet contra McCleilan P. 117. Burnet contra Swan P. 166. Burnet contra Gib P. 169. Bute Lady contra Sheriff thereof P. 7. C. CAmphel contra Tait P. 220. Carfrae contra TailÈiefer P. 104. Carnegie contra Durham P. 200. Carse contra Carse P. 17. Cassils contra Whiteford P. 24. Chalmers contra Ferquharson and Gordon P. 105. Cheap contra Philp P. 34. Cheyne contra Chrystie P. 19. Cheislie contra Edgar P. 181. Clerk contra Stewart P. 139 Colarnic Lady contra Tennents P. 112. Collector of the Taxations contra the Parson of Auldhamstocks P. 49. Colvil contra Feuars of Culross P. 28. Commissars
of Edinburgh contra the Commissars of Briechen P. 64. Commissar of St. Andrews contra Watson P. 209. Craig contra Edgar P. 85. contra Laird of Cramond P. 224. Cranston contra Wilkieson P. 9. Cranston contra Ker P. 113. Cranston contra Broun P. 86 Craufurd contra Town of Edinburgh P. 16. Craufurd contra Gordon P. 183. Crie contra Findlater P. 37. Cruickshanks contra Watt P. 122. Cuming contra Johnston P. 16. Cuningham contra Lees P. 75. Cuningham contra Maxuel P. 152. Cuningham contra Halyburton P. 212. D. DAlling contra MckenÈie P. 153. Dalrymple contra P. 31. DalÈiel contra P. 47. Davidson contra Town of Innerness P. 32. Davidson contra Richardson P. 49. Davidson contra Wauchop P. 188. Dick contra Dick P. 202. Dick contra Oliphant P. 215. Dickison contra Sandilands P. 5. Donaldson contra Rinnie P. 217. Douglas contra L. Wamphray P. 258. Douglas contra Jackson and Grahame P. 121. Douglass contra Carlyle c. P. 132. DrumelÈier contra E. Tweeddale P. 191 215. Drumkilbo contra Mcmath and Oliphant P. 223. Drummond contra MenÈies P. 92. Drummond Rickarton contra P. 157. Dumfermling E. contra E. Callender P. 161 178. Dundass contra Turnbul and other Creditors of Whitehead of Park P. 163. Dundee Town contra E. Findlater P. 59. Dundonald E. contra Glenagies and the E. Marr P. 141. Dunmure contra Lutfutt P. 138. Dunse Presbytrie contra P. 122. Durham contra Durham P. 195. E. EDinburgh Town contra E. Loudoun P. 101. Edmondstoun contra Preston P. 103. Elies contra Keith and Wiseheart P. 4 38 Elies contra Wiseheart P. 10. Elies contra Hall and others P. 148. F. FAlconer contra E. Kinghorn P. 6. Ferguson contra More P. 4. Ferguson contra P. 69. Findlay contra Little P. 184. Fyffe contra Daw P. 39. Forbes contra Blair P. 33. Forbes contra Innes P. 52. Forbes contra Ross c. P. 148. Fordel contra Caribber P. 211 213. Fountain contra Maxuel P. 48. Fraler contra Hog P. 173. Fullerton contra Laird of Boyne P. 116. G. GAlbraith contra Lesly P. 175. Gardner contra Colvil P. 44. Gibson contra Fiffe P. 160. Gibson contra Reynold TailÈeor P. 145. Gilchrist contra Murray P. 136. Gilespie contra Auchinleck P. 50. Glasgow Town contra P. 58. Glasgow Town contra Greenock P. 193. Galsgow Colledge contra Parochiners of Jedburgh P. 195. Glasgow procurator Fiscal contra Cowan P. 216 Glencairn Earl contra Brisbaines P. 204. 213. Glencorse Laird contra his Brethren and Sisters P. 53. Glendoning contra E. Nithsdale P. 102. Gordon contra Pitsligo P. 82. Gordon and Ludquharne contra P. 93. seq Govan contra Paip P. 21. Grahame contra Rome P. 214. Grants and Row contra Viscount of Stormount P. 4. Grant contra Grant P. 126. Grant contra Barclay P. 158. Grant contra Lord Bamff P. 198. Gray contra Gordon P. 16. Gray contra Forbes and Lindsay P. 68. Gray contra Cockburn P. 129. Grierson contra Laird of Lag P. 192. Grott contra Sutherland P. 68. H. HAll contra Murray P. 138. Halcartoun Lord contra Robison P. 144. Halyburton contra Halyburton P. 16. Halyburton contra Scott P. 63. Halyburton of Innerleiths Petition P. 145. Hamilton contra Broun P. 27. Hamilton contra Smith P. 37. Hamilton contra Symenton P. 38. Hamilton contra Lord Beilhaven P. 49. Hamilton contra Earl of Kinghorne P. 81. Hamilton contra Maxuel P. 133. Harper contra Hamilton P. 13. Harroway contra Haitly P. 31. Hartshaw contra Hartwoodburn P. 27. Hattoun Lord contra Baterson P. 66. Hay contra Litlejohn P. 28. Hay contra Magistrates of Elgine P. 17. Hay contra Oliphant P. 36. Hay contra Drummond P. 47. Hay contra Jamison and Alexander P. 108. Hay contra Gray P. 125. Hay contra Alexander P. 162. Heckford contra Ker. P. 129. Hedderwick contra Wauch P. 10. Hempsfield contra Bannatyne P. 98. Henderson contra Henderson P. 68. Henderson contra P. 40. Hermistoun contra Lord Sinclar P. 39. Hermistoun contra Cockburn P. 69. contra Hepburne P. 74. Hilton contra Lady Cheynes P. 165. Hog contra Countess of Home P. 49. Holmes contra Marshell P. 218. Home contra Creditors of Kello P. 26. Home contra Countess of Murray P. 35. Homes contra Paterson P. 50. Home contra Fewars of Coldinghame P. 52. Home contra Tailzifer P. 58. Home and Elphingston contra Murray P. 89. Home contra Scot. P. 192. Home contra Steuart P. 214. I. JAffray contra Murray P. 185. Jaffray contra Laird Wamphray P. 211. Inglis contra Boswell P. 187. Inglis contra Inglis P. 195. Inglis contra Laurie P. 211. and Laird Innes contra P. 57. Innerness Town contra Forbes c. P. 77. Innes contra Innes P. 99. Johnstoun contra Cuninghame P. 35. Johnstoun contra Erskine P. 62. Johnstoun contra Cullen P. 165. Johnstoun contra Orchartoun P. Ibid. Johnstoun contra Rome P. 184. Johnstoun of Wamphry Supplicant P. 153. Irving contra Carruthers P. 117. Irving contra Forbes P. 169. Irving contra Irving P. 175. Justice contra Stirling P. 58. Justice Clerk contra Lamberton P. 46. K. KEith contra Lundie P. 39. Keith contra Grahame P. 60. Kelhead contra Irving and Borthwick P. 92. Kennedy contra Hamilton P. 19. Ker contra Ker. P. 39. 61. 191. 216. Ker contra Ruthven P. 71. Ker contra Hunter P. 200. Ker contra Fleyming P. 35. Key contra Creditors P. 142. Kilburny contra Cuningham P. 70. Kincaid contra Gordon P. 225. Kinghorn Earl contra Laird Udney P. 53. Kings Majesties Letters to the Lords of Session P. 71. Kinloch contra Rait P. 91. Kinnier contra P. 122. Kyle contra Gray P. 126. L LAmingtoun ontra Raploch P. 177 Langlands Supplicant P. 137. Lauderdale Earl contra Vassals of Musselburgh P. 48. Lauderdale Earl contra Lady and Lord Yester P. 134. Lepar contra Burnet P. 5. Lesly contra Bayne P. 21. Lesly contra Lesly P. 25. Lesly contra Fletcher P. 181. Letter from the Lords of Session to the King P. 102. Linlithgowes Freeholders contra their Commissioners to Parliament P. 76. Litlejohn contra Mitchel P. 198. Livingston contra Garner P. 137. Lugtoun Lady contra Hepburne and Creichtoun P. 67. Lumsden contra Summers P. 30. Luss Laird contra Earl of Nithsdale P. 100. Lyon King at Arms contra P. 13. M. Mackbrae contra Mclaine P. â—7 Mcintoish contra Frazer P. 100. Mcintoish contra MckenÈie P. 110. MckenÈie contra Fairholm P. 11. 14. 23. Mckâ—ttrick contra P. 56. Mcleod contra Young P. 5â— Mcmillan contra Meldrums P. 128. Mcneâ—sh contra Bryce and her Husband P. 155. Mcquaill contra Mcmillan P. 15â— Malloch contra the Relick of David Boid P. 222. Marshell contra Forrest and his Spouse P. 160. Marshel contra Holmes P. 195. contra Martine P. 118. Mastertouns Creditors and Relict P. 154. Maxuel contra Tennents of Duncow P. 64. Maxuel contra Maxuel P. 105. contra Maxuel P. 100. Meldrum contra Tolquhone P. 104.