THE DECISIONS OF THE LORDS OF COUNCIL SESSION In the most Important Cases Debate before them With the ACTS OF SEDERUNT AS ALSO An Alphabetical Compend of the Decisions With an Index of the Acts of Sederunt and the Pursuers and Defenders Names From June 1661. to July 1681. PART FIRST c. OBSERVED BY Sir JAMES DALRYMPLE of Stair Knight and Baronet c. EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1683. Unto the Right Honourable GEORGE EARLE of ABERDEEN c. Lord High Chancellour of SCOTLAND Sir David Falconer of Nevvtoun Lord President of the Session Sir George Mckenzie of Tarbet Lord Clerk-Register Sir Iames Foulis of Collingtoun Sir Iohn Lockhart of Casslehill Sir David Balfour of Forret Sir Iames Foulis of Reidfoord Sir Alexr Seton of Pitmedden Sir Roger Hogg of Harcarse Sir Andrew Birnie of Saline Sir Patrick Ogilvie of Boyn Sir Iohn Murray of Drumcairn Sir George Nicolson of Kemnay Iohn Wauchop of Edmistoun Sir Thomas Steuart of Blair Sir Patrick Lyon of Carse SENATORS of the COLLEDGE of JUSTICE and Ordinar LORDS of COUNCIL and SESSION WILLIAM Marquess of Queensberry c. Lord high Thesaurer of SCOTLAND IOHN Marquess of Athol c. Lord Privy Seal and Vice-Admiral of SCOTLAND ALEXANDER Earl of Murray c. Conjunct-Secretary of State IAMES Earl of Pearth c. Lord Justice-General Extraordinar LORDS of the SESSION My Lords MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships because they are your own I have only been your Servant in Observing and Collecting them and am confident they will serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom to whom it cannot but be highly acceptable and satisfying to see that in so long a tract of time you have kept so steady and equal a course in the Administration of Justice with 〈…〉 It hath been looked upon as the priviledge of Judgesâ— to bring in Causes to be determined in what order they thought fit which gave occasion of great Reverence to and dependence upon them and of gratifications to their Friends but your Lordships having found so much inconveniency to the Subjects by their tedious expensive and uncertain attendence unavoidable in that way you did therefore willingly and of your proper motion quite that Priviledge and ordered that all men should have dispatch in Justice as their own diligence put them in readiness to demand it without pretence of complaint for being postponed or delayed and you gave the rise for interposing the Authority of Parliament to that Order which could not but avoid the suspition of inequality which did occur while every Judge in his course did choise at discretion what Causes to hear which were readily supposed to be these of his Friends and Relations As your Lordships have been equal in the Order so these Decisions will show that you have been impartial in the matter of Justice and it will appear that you have followed the same uniform Course of Justice otherwise it had been impossible for you to quadrat with your selves if you had followed any other Rule for if personal Interest had great influence it could not fail but the same case would have been diversly determined amongst different Parties The way of Truth and Justice is one and never crosseth or justâ—eth with it self but the way of Error and Partiality is infinite and can never be long consonant and the pretence of varying upon differences in the cases will easily be perceived when these are not the true motives of Variation nor can the greatest caution keep former Cases so in memory as not to fall in flat contradictions in some length of time when Justice is not the Rule It was no wonder that inconsistencies did occur when former Decisions were but little known and were only Transmitted by uncertain Tradition from the memory of Judges or Advocats where a constant Custom was not introduced but in circumstantiat Cases all the points of Fact could not be so preserved but Pleaders would differ about them and controvert whether the difference were so material as to be the just motives of alteration and if they should have recourse to Records they could thence have little remedy seing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded and though they were yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes The contrarieties that are remarked by the judicious and industrious Lord Dury who did serve and observe about the same length of time that I have done are the more excuseable that before his time the Decisions of Session were not much marked and but in few hands yea it was a long time before the Decisions observed by Dury were become common and were cited by Pleaders or noticed by Judges It is impossible to evite the clamours of Parties coming short of their expectation when they are in heat and fervency carrying on their Cause and when they have heard the Wit and Eloquence of their Advocats endeavouring to make their Case if not evidently just at least probably such but when that fervour is cooled upon second Thoughts re-considering the Motives upon which the Lords proceeded if they see that they Decided not otherwise upon the same Grounds they cannot be so far wanting to their own quiet as not to acquiesce and rest satisfied considering that their first Thoughts were in fervour and at best were but the Conceptions of Parties whose interest hath a secret influence to byass their first Apprehensions they could not but be convinced that the private and particular opinion of Parties interressed should quietly cede to the Judgment of so many learned and experienced Judges having no other concernment in the event of the Cause but that Justice might be inviolable and that no pernicious or dangerous preparative might be laid to the common detriment of all and who by all the obligations whereof men are capable towards God their Prince Countrey and Posterity are engaged to be careful and tender of Justice It is the great interest of Mankind that every man should not be Judge in his own Cause but that there should be indifferent Judges of good report men of courage fearing God and hating covetousness who might hear and determine the Controversies of Parties which necessarly doth imply that either Party should acquiesce in the publick judgment of Authority It is amongst the greatest interests of Mankind that they may securely enjoy their Rights and Possessions being free from fear to be over-reached or oppressed without remedy which can not be attained unless their Rights be lodged in the hands of just and judicious Judges wherein at first they could have little more to rest on but the Reputation that their Judges were such nor could the Judges then have any other Rule then bonum equum according
contribution money payable to them And such other General Letters as are expresly warranted be the Acts of Parliament And ordains an Act to be extracted hereupon and insert in the Books of Sederunt ACT for keeping the Barrs Iune 22. 1665. THE Lords considering what great confusion and disorder is occasioned by the thronging of people of all sorts within the Barrs of the Inner and utter House in the morning before the Lords sit down and at twelve a clocke in the forenoon and the prejudice arising there through by the miscarrying of Processes For remeid whereof the Lords do hereby discharge the Macers in time coming to give access to whatsomever Persons of whatsoever quality within the Barr of the Inner-house after any of the saids Lords have entred the House in the morning or after twelve a clock till the Lords be all risen off the Bench and be removed out of the House And sicklike that they permit no person whatsoever to stay within the Innermost-barr of the Utter-house where the ordinary Lord and Clerks do abide neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call nor during the time that the ordinary Lord is upon the Bench neither after untill the reading of the Minut Book be ended except the persons following viz. The keeper of the Minut Book the King's Solliciter and one Servant appointed by His Majestie 's Advocat And that person appointed for reading the Minut Book during the time of the reading of the Minut Book and no longer And the Macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids Barrs during the time foresaidâ— Certifying the saids Macers that if any of them shal be found negligent in performance of their dutie in the premisses They shall forthwith be removed from their Office And ordains an Act to be extended hereupon ACT anent Pro-tutors Iune 10. 1665. FOrasmuch as in the Action of compt and reckoning depending at the instance of Robert and Bessie Swintouns against Iames Notman at length heard before the Lords of Council and Session It being questioned and debated how far a Pro-tutor is lyable by the Law and Practice of this Kingdom whether for ommission as well as for commission and intromission And the saids Lords considering That albeit Pro-tutors be excusable as to their bygon intromissions In regard it was not constant hitherto how far they could be lyable yet finding it expedient that the foresaid question should be determined as to the future and the Leiges no longer left in uncertainty thereanent Therefore the Lords declare that whatsoever person or persons shall in time coming intromet with the means and estate of any Minor and shall act in his affairs as Pro-tutors having no right of Tutory nor Curatorie established in their Persons They shall be lyable aswell for what they might have intrometted with if they had been Tutors and Curators as for what they shall intromet with de facto Sicklike and in the same manner as Tutors and Curators are lyable by the Law and Practice of this Kingdom And the Lords declare that they will observe this as an inviolable practice in time coming And ordain these presents to be published at the Mercat Cross of Edinburgh and an Act to be extended thereupon and insert in the Books of Sederunt ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before November 8. 1665. THE Lords considering That through the shortness of the Summer Session unnecessary giving out and malicious detaining of Processes which have been seen the Winter Session immediately preceeding The Leiges are oftimes frustrate of Justice during that Session after much charges expenses time vexation and trouble And having it always in their thought how Justice may be speedily administrat with the greatest ease and least expenses to the Subjects Do declare that in the future they will not allow Defenders and their Procurators to see Processes in communi forma during the Summer Session where the same has been seen and returned by them the Winter Session immediately preceeding and that they will proceed to do Justice therein without indulging to defenders any such sight during the Summer Sessions in the future where there hath been no material amendments made be the Pursuers of their Summonds nor new pieces produced in the Process to be instructions and grounds thereof and which were not seen the Winter Session immediately preceeding And ordains these presents to be insert in the Books of Sederunt His Majesties Instructions to the Commissars February 20. 1666. THE Lord President having received the Instructions following from Iohn Earl of Rothes His Majesties High Commissioner did communicat the same to the hail Lords and that it was His Graces pleasure and desire that the same might be recorded in the Books of Sederunt The Lords of Council and Session ordained the saids Injunctions to be insert and recorded in the saids Books of Sederunt under Protestation always that the recording of there saids Injunctions should be no ways prejudicial to the priviledge of the Lords of Session or derogat in any sort from their Iurisdiction in civil causes And ordained the said Injuctions after recording thereof to be given up and delivered to the Archbishop of St. Andrews his Grace or to any having his warrand to receive the same And that the Extracts of the saids Injunctions be given to all Persons who shal conceive themselves concerned therein whereof the tenor follows Sic Supra Scribitur CHARLES R. HIS Majesty Authorizes and injoyns these following Instructions contained in five Leaves Attested and Subscribed by two of the late Commissars of Edinburgh for regulating the Proceedings of the Commissars in their respective Courts Oxford January 21. 1666. and of His Reign the seventeenth year By his Majesties Command Sic Subscribitur LAVDERDAIL INstructions and Rules set down and appointed by the Reverend Fathers Arch-bishops and Bishops in this Kingdom to the Commissars Clerks Procurator-fiscals and other Members of Court of the Whole Ecclesiastical Jurisdiction having Commission from the saids Reverend Fathers 1. Ye are by vertue of your Commission to decide and judge in Causes concerning Benefices and Teinds in matters of Scandal Confirmations of Testaments great and small within your bounds all Causes Testamentar and in all other matters wherein the Oath of Party is required if the same does not exceed fourty pounds And in all other Causes wherein the Parties submit themselves to your Jurisdictions 2. Ye are to Judge in Reductions and Declarators of Nullity of Marriage for Impotency or upon any other ground or reason whatsomever All actions of Divorcement for Adultery or upon any other ground All Actions or Questions of Bastardry and adherences when the samine shall have a connexion with the Lawfulness of Marriage or Adultery all which are reserved to the Commissars of Edinburgh and do belong to their Jurisdiction privative But
Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
not for all Right he hath or may have or does not dispone with absolute Warrandice In these Cases the Authors Right supervening accresces not to the Acquirer but himself may make use thereof against the Acquirer much more any other having Right from from him 2ly The maxime holds not if the Authors Right be Reduced before he acquire the new Right in which case the first Right being extinct nothing can accresce thereto but the Author may acquire any other new Right and make use thereof 3ly The maxime hath no place if the Author do not acquire a new Right to the land which could be the foundation and ground of the Tack granted as if he acquired but the Right of an Annualrent which could be no ground of the Defenders Tack much more if he acquire a Right to the Mails and Duties of the lands either upon Sentence to make Arrested Goods furthcommand or an Assignation or Disposition of the Mails and Duties made to the Author for satisfying of a Debt to him by the Disponer This would be no Right to the land that could accresce to Validat a Tack The Defender answered First that his first Defense was yet relevant because albeit his Authors Right were reduced he not being called his Right would be a sufficient colourable Title to give him the benefit of a Possessory judgement untill his bona fides were interrupted by Process because his subaltern Right is not extinct till either by way of Action or Exception it be declared extinct as falling in consequence with his Authors Right reduced seing there is no mention thereof in the Decreet of Reduction 2ly Albeit Diligence had been used yet if the user thereof insisted not but suffered the Defender to possess bona fide seven year thereafter it revives that benefit of a new Possessory Judgement The Lords as to this Poynt found that the Interruption of the bona fides by Process did still take the same away unless it were Prescrived but found that before any Process the Defense should be relevant and therefore sustained only Process for the year since the Citation As to the other Defense in jure The Defender answered that his Defense stands yet Relevant notwithstanding all the Fallacies alleadged which are without warrant in Law and without example with us where this Maxime hath ever been held unquestionable that jus Authoris accrescit Successori unlesse the Successors Right be expresly limited to a particular Right or to any Right the Author then had but the Defender needs not Disput the Equivalence of the Cause unlesse such expresse Limitation were added there is no ground to presume an Exception upon the Personal oblidgment of Warrandice from fact and deed which oftimes is put in Contracts fully onerous but on the contrair there is a several Defense upon that very Clause that the Earl of Hoom whatever Right he should acquire yet if he should make use of it against this Defender he comes against his own Warrandice whereby he is oblidged that he has done nor shall do no deed prejudicial to the Defenders Tack neither is there any ground of Exception albeit the Authors Right was reduced before the new Right acquired from that ground that the new cannot accresce unto the old Right being Extinct because the Maxime bears that it accresces Successori non jure Successoris so that albeit the new Right do not Validat the old Right yet the new Right becomes the Defenders Right eo momento that it became the Authors Right per fictionem juris without deed or diligence and cannot be taken away by any subsequent deed of that Author more then if before such a deed he had particularly established his Successors therein because the fiction of the Law is equivalent to any such establishment neither is their any ground of Exception that the Authors Right Superveening is but an Annualrent which cannot Validat a Tack because if the Author were making use of that Annualrent to poynd the ground the Defender upon his Tack and Warrandice would exclude him because he could not come against his own dâ—ed and oblidgment yea albeit it were but a Right to the Mails and Duties quocunque modo The Lords having considered the Earl of Hooms new Superveening Right and that it was but the Right of an Annualrent of 300 lib. Starling with a Clause that incase of failzie of payment he might uplift the hail Mails and Duties till he were payed and that the Defenders Tack included only Personal Warrandice They repelled the Defense and found that such a Right could not accresce to the Defender to validat his Tack wherein some of the Lords had respect to that point that the Right was Reduced before this new Right but others as it seems on better grounds layed no weight on that if the cause onerous had been the full value and equivalent or if the Tack had born for all Right that I have or shall acquire which would accresce to the Successor as oft as ever it was acquired though all the prior Rights had been reduced but in this Case the Author not acquiring a new Right to the Lands but only to the Mails and Duties which in effect is but Personal it could not accresce to the Defender more then if the Author had been Factor to a thrid Part by the new Right and albeit the Clauses of Personall Warrandice might have Personally excluded the Earl of Hoom himself yet seing that Right could accresce to the Defender the Earl of Hoom having renunced or assigned it to a thrid Partie The Personal Objection against the Earl of Hoom upon the Personal Clause of Warrandice ceases neither did the Pursuer insist upon the Earl of Hooms Right but his own Elizabeth Scrimgeor contra Executors of Mr. John Murray Eodem die IN a Compt and Reckoning betwixt Elizabeth Scrimgeor relict of Mr. Iohn Murray Minister and his Executors these Queries were reported to the Lords by the Auditor First Whether the Defunct dying Infeft in an Annualrent could have an Heir as to moveable Heirship The Lords found he would seing the Annualrent was Feudum and he might thereby be esteemed as Baro as well as a petty Fewer Quest. 2. Whether the Defunct having died the day before Martinmas 1661. He would have right to any part of the Stipend 1662. As the Annat The Lords found he would have the half of 1662. Quest. 3. Whether he would have like right to the Gleib as to the Stipend by the Ann. The Lords found that could not be debaitable betwixt the Defuncts Relict and Executors albeit there was no compearance for a new intrant in which Case they thought that so soon as the intrant 〈…〉 were admitted he would have right to the Manse and Gleib and not the Defunct though the Defuncts Wife would have right to a part of the Stipend due after his entrie Quest. 4. Whether the Heretable Debt could exhaust the moveable Estate of the Defunct to deminish
and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the â—â—eretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ— some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedâ—runts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coâ—â—pears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ— insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ— the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâ—uslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâ—ed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they â—epelled the defence and Decerned the Superiour to receive the Pursuer salvo jure â—ujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâ—tertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of â—ebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâ—her But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord â—tormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâ—d both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâ—our declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâ—ripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ â—ut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâ—ar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ— which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the approbation
of the second must approve both and the approbation is sufficient Warrand for him to intromet and the Auditors to compt with him The Lords Repelled the Defense upon the Act of Indemnity in respect of the foresaid Exception contained therein and likewise found that the Oath subjoyned to the second accompt could not exclude the Pursuer from insisting for the Defenders Fathers intromissions ommitted out of the first accompt and wherewith he Charged not himself but found that the Defender was secure by the Act of Indemniâ—y so far as he had charged himself with and compted and found that he was not obliged after so long a time to instruct his Commission or the Warrand of the Auditors that fitted his accompts but that the approbation was sufficient to astruct the same Lady Diana Maxwel contra Lord Burley and others Feb. 15. 1667. LAdy Diana Maxwel Lady Cranburn and other Executors confirmed to the Countess of Dirletoun pursued the Lord Burley as Representing his Father for payment of a Bond granted by his Father and others to the umquhil Earl of Dirletoun for the price of a great quantity of Victual and that upon these Grounds that the Pursuers are Executors surrogat to the Countess and have licence to pursue which Countess had an assignation from the Earl to his Houshold-stuff which bore this general Clause And to his Chattel and other Moveable-goods and Gear whatsomever under which generality this Bond is Comprehended being moveable and for Victual and so is a Chattel as the word is understood by the Law of England whereby all that is not by Infeftment of Fee is comprehended by the word Chattels and belong to the Executors as Laisses c. 2ly The Countess was nominat universal Legatrix in the Earls Testament and thereby has Right to this Moveable-bond 3ly As Relict she has Right to the half It was alleadged for the Defender no Process upon any of these Titles First Because the assignation cannot be extended to this Bond neither is the word Chattels to be Interpret according to the Law of England the assignation being made by a Stots-man and made in Scotland after the Scottish manner 2ly The Pursuers as Executors to the Countess cannot pursue upon the universal Legacy the Debitors of the Defunct but only the Defuncts Executorsâ— because this Bond is yet in bonis primi defuncti and must be Confirmed 3ly The Relict cannot pursue the Debitors for her half but at least she must call the Executors The Lords found both the last Alleadgences Relevant but as to the first before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels by the Law of Englâ—nd in respect it was notour to them that the Lord Dirletoun beìng a Servant of the Kings lived the most part of his time in England and in Scotland there is no use of the word Chattels Isobel Glen contra Iohn Hume Feb. 19. 1667. ISobel Glen as assigney by Mr. Edward Jameson having obtained Decreet against the umquhil Earl of Hume for certain by-run Stipends and thereupon having arrested in my Lord Whitekirks hands certain Sums due by him to the Earl of Hume She now pursues to make forthcoming Compearance is made for Iohn Hume who produces an assignation by the Earl of Hume to the sums due by Whitekirk and also produces a Gift of the Earls Liferent-Escheat and alleadges first No Process at the Arresters Instance because the Earl of Hume being dead the Debt must be first Establisht by a Decreet against one Representing him who must be called principaliter before the Person in whose hands the arrestment is made can be decerned to pay that which was the Defuncts 2ly Iohn Hume must be preferred as Donatar because the arrestment was laid on after the Earl of Humes Rebellion by which his Goods belonged to the King and no Sums can be made forth-coming as belonging to him after the Rebellion because they belonged to the King It was answered to the first That if the Earl of Hume had not dyed at the Horn the Pursuer would have either Confirmed as Exâ—cutor Creditor or called the Earls Executors but that is not necessar seing the Earl died at the Horn and could not have one to Represent him in mobilibus and that now the Donatar who succeeds compears To the 2. the Pursuer as Arrester ought to be preferred because albeit the arrestment be after the Rebellion yet it is before the Gift or Declarator and it is for a Debt due by the Earl before the Rebellion and so doth exclude the Donatar for which they produced a Decision marked by Dury Pilmour contra Gaigie In which case the Gift was granted by a Lord of a Regality having the benefit of the Escheat whereanent the Lord Advocat Represented that this could not be drawn in consequence to prejudge the King or his Donatar because the Lord of Regality being a Subject debuit invigilare sibi by declaring the Rebellion without delay but the King cannot so soon know nor is he prejudged by the neglect of his Officers Yet the â—ords uâ—animouslie preferred the Arrester the Advocat forbearing to Vote for they tâ—â—ught the câ—se of Creditors for Debts before Rebellion were not to be prejudged â—â—â—ng Diligence before Declarator or if they should Poind Arrest Adjudge c. Cranstoun contra Wilkiâ—on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse he is obliged to Infeft her in a Tenement exprest therein and in all the Conquest during the Marriage which Infeftments were to be taken to them the longest liver of them two in Conjunct-Fee and their Heirs betwixt them Which failzing to the Heirs of the Mars Body Which failzing to the Wifes Heirs whatsomever after which the Husband purchâ—sed a piece of Land but took the Infeftment thereofâ— to him and his â—ife and the heirs betwixt them Which â—ailzing to his own heirs whatsomever omitting the wifes heirs This Cranstoun obtains hiâ— self Infeft in this Conquest Tenement as Heir to the Wife and thereupon obtained Decreet for Mails and Duties Wiâ—â—ison as Heir to the Husband pursues Reduction of the Decreet on these grounds first That Cranstouns Infeftment as Heir to the Wifeâ— was null because the Wife was not Fiar but Liferenter 2ly The Wife having accepted of an Infeftment posterior to the Contract without mention of her Heirs that innovat the Provision of the Contract and excludes her Heirs It was answered first That the Man and Wife being Conjâ—nct fiars the Wife was Fiarâ— and the Man but Life â—enter because the last Termination of Heirs whatsomever Terminat upon her 2ly Albeit Cranstoun had taken his Infeftment wrong Wiâ—kison cannot quarrel the same because he as Heir to Wilkison was obliged to Infeft him as Heir to the Wife and to the posterior Inâ—eftment it is contrair to the provision of the Contract of Marriage and there does appear no accepting thereof by the Wife 3ly Cranstoun is
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
found by the Depositions of the Witnesses that that part of the Town of Inverness on the Northâ—side of the Water only had been in Possession by casting Peats in the Moss contraverted and that the same is a part of Month Kaplock and that the Pursuer had proven the Right of Property therein And therefore ordained the Town of Inverness on the other side of the Water to desist from the Moss contraverted and granted Commission to seâ—tle the Parties anent their place in casting in the Moss or in case of variance to Report Iean Dalmahoy contra Hamiltoun of Binnie December 6. 1661. JEan Dalmahoy Charges Alexandee Hamiltoun of Binnie for a Tack-Duty of 2000. merks due to her for her Liferent-lands he Suspends on this Reason that he has taken the benefit of the late Act of Parliament between Debitor and Creditor and this Sum being above 2000. merks stands thereby Suspended for six years The Charger Answers non relevat because the Act extends not to Rents or Tack-Duties of Lands albeit exceeding 1000. Pounds but only to borrowed Sums and other money bearing Annualrent which in Recompence of that forbearance are accumulat with the Principal Sums The Lords found the Act not to extend to Rents or Tack-duties and therefore repelled the Reason Iames Hoom contra Abraham Hoom. Eodem die JAmes Hoom as Assigney to a Reversion and order of Redemption used by the Earl of Hoom against Abraham Hoom pursues Declarator of Redemption and Removing in the same Process The Defender alleadged Absolvitor because the Reversion expressed not Assigneys and therefore the Defender cannot be oblieged to renounce to the Pursuer an Assigney Secondly At the time of the Confignation the Earl required the Wodsetter to Subscribe the Renounciation to a blank Person upon a back Bond declaring the same to the Earls behove which he was not oblieged to do by the Tenor of the Reversion Thirdly No Declarator till the Earl produce the Sum at the Bar seeing he lifted it himself The Lords found that albeit the Reversion expressed not Assigneys yet seeing the Order of Redemption was used by the Earl himself the Assigney had sufficient Right but Decerned the Defender to Renounce only in favour of the Earl and his Heirs but not to Dispone to any other Person as the Earl desired and Declared there should be no Decreet extracted till the Consigned Money were produced and given up neither did they decern in the removing till the Parties were further heard thereupon Alexander Tailzifer contra Sornebeg Eodem die ALexander Tailzifer as Heir appearand to umquhil Tailzifer of Redheus Pursues Mistresse Margaret Forrester his Uncles Relict and Iohn Schaw of Sornebeg her Husband for Exhibition ad deliberandum of all Writs granted not only to the Defunct but also granted by the Defunct to his said Relict or any other Person The Defender alleadged non relevat for Writs granted by the Defunct to the Defender or other Persons because albeit the Pursuer were entered Heir he had no interest for Exhibition thereof unlesse there were Clauses in his favour therein nemo tenetur edere instrumenta contra se and if this were sustained it were the way to make patent all the Charter Chists in Scotland at the Instance of appearand Heirs under pretence to Deliberat but in effect to pick Quarrels and find the weaknesse thereof The Pursuer answered maxime relevat for seeing the Law gives Heirs the benefit of Deliberation they must have the necessary means thereof by Inspection not only of the benefite but also of the burden of the Defunct without which they cannot know num sit damnosa haereditas Especially in this case against a Relict who probably might have had Influence upon the Defunct Husband to grant Right to her that might Evacuat the Heritage And in this case the appearand Heir had a more large Interest to crave Exhibition nor the Heir Entered who could only crave Exhibition for Delivery Transumpt or Registration and so behoved to Libel a peculiar Interest but the appearand Heirs Interest is only ad deliberandum And therefore the Exhibition as medium thereto must reach to all whereupon he ought to Deliberat Especially the Defuncts Debt and albeit it be true nemo tenetur edere instrumenta contra se to found or give Title to the Pursuers Action Yet he having Title by the Law to crave Inspection for Deliberation hath good Interest Yea if he produce a Title in himself he may even force the Defender to Exhibite Writes ad probandum by an incident as well as third Parties to whose Writ he hath no Right save only to bear testimony for him The Lords having heard this Case in their Presence because the Point had been variously Decided as to Writs granted by Defuncts found the Libel Relevant not only for all Writs granted to the Defunct but also granted by the Defunct to his Relict Bairns or Servants in his Family at the time of his Death being such Writs upon which no Infeftment followed for as to these they thought the Registers may give as much Evidence as was sufficient to Deliberate and would not upon this ground open Charter Chists for shewing real Rights and the plurality carryed that even Personal Rights granted to strangers should not be produced hoc modo severals being of the opinion that Debts Discharges and Personal Rights should be thus Exhibite In respect that Heirs in Scotland were lyable simpliciter for all the Defuncts Debts And therefore should have Inspection as well of his Debts as of his Estate as was found before between the Lairds of Swintoun and West-nisbit observed by Dury February 26. 1633. Katharine Kinross contra Laird of Nunthil December 10. 1661. KAtharine Kinross having Charged the Laird of Nunthil for payment of a Bond granted to her first Husband and the longest liver of them two and their Heirs which failzing his Heirs he Suspends on this Reason that she is but Liferenter and the Defunct being Infeft in Fee she would not Renounce but the Heir Which the Lords Sustained and found the Letters only orderly proceeded for the Annualrent The Earl of Roxburgh contra Mcdowal of Stodrick December 11. 1661. THE Deceased Earl of Roxburgh having obtained Decreet of the Commission for the valuation of Teinds in Anno 1635. against Mcdowal of Stodrick this Earl having Right from the Deceast Earl pursues Stodrick for payment of the valued Duty The Defender alleadged no Process because he had intented Reduction of the said Decreet and Improbation of a Procuratory mentionated therein to have been produced by Mr. Robert Trotter warranding him to consent for Stodrick to that Valuation which is the only ground of the Decreet without either Dispute or Probation In which Reduction Terms are taken to produce and being prejudicial to this Action it must be first Discussed The Pursuer answered that there can be here no prejudiciallity which is only betwixt two Principal Actions but here res est judicata by a Decreet
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
known or might have been known to the Pursuer the time of the Bargain at least to his Tutors who made the Bargain Secondly there is no legal Distress but voluntar payment made all the years bygone The Lords Repelled the Defense and found that seeing the Distress by the Stipend was unquestionable payment made thereof without Processes prejudged not and that the Pursuers knowledge could work nothing being then a Pupil Laird of Elphingstoun contra Sir Mungo Murray Eodem die THe Laird of Elphingstoun having Charged Sir Mungo Murray for the price of some Lands bought from him he Suspends and alleadges that by the Disposition the Charger is oblieged to relieve him of all Inhibitions and now produces several Inhibitions The Charger answered non relevat unless there were a Distress seeing the Disposition bears not to purge but only to relieve or to warrant against Inhibitions The Lords considering that the Chaeger vergebat ad inopiam found the Reasons Relevoan till Cauton were found to warrant the Suspender from these Inhibitions They found also that where the Charger was oblieged to pay to the Suspender the Composition for his Entry to the Lands That the Suspender should have no Composition if he got it Gratis albeit he alleadged he got it for other good Services Skeen contra Lumsdean Eodem die ANdrew Skeen having Charged Alexander Lumsdean for payment of a sum for which he was Cautioner for his Brother Mr. Thomas Lumsdean he Suspends upon this Reason that the cause of the Bond was two Bills of Exchangeâ— which was Protested The Suspender answered he offered him to prove they were payed after the Protest by him who drew the Bills or by Mr. Thomas Lumsdean in whose Favour the Bills were drawn The Suspender replyed that the Alleadgence ought to be Repelled because he was assigned to the protested Bills for relief of this Cautionry and intimat his Assignation to Skeen who delivered the Bills and got the Bond Charged on The Charger offered him to prove paymentâ— before that Assignation or Intimation and ad modum probationis produced an Instrument under the Seal of Camphire and a Declaration of the Conservator there bearing that upon inspection of Mr. Thomas Lumsdeans Compt Books they found that he had acknowledged two or three sums payed in part of these Bills and exprest the Dates thereof prior to the Assignation The Suspender alleadged the Compt Books could not prove unless they were produced Cognosced and Proven to be Lumsdeans Compt Books Secondly they could not prove contra tertium Thirdly the Question being de data and they holograph they could not prove their Date Fourthly these Testificats can prove nothing unless they had been taken upon Processes or by Commission The Lords found the Testificats could not prove but that the Compt Book being Cognosced might prove against the Assigney being Brother to Lumsdean and the Books out of his hand since he was broken for amongst Merchants Compt Books or Writs without Witnesses by their Custom are sufficient and ordained Lumsdean and his Brother to Depone upon the having of the Books to produce them if they had them and if not granted Commission to the Magistrats of Camphire and Conservator to Cognosce the Books and to report what they find of this matter in them Marjory Gray contra Dalgardno February 7. 1662. MAjory Gray pursues Dalgardno as vitious Intromettor with the Goods of a Defunct to pay his Debt who alleadged Absolvitor because the Defunct Died Rebel and at the Horn and so nihil fuit in bonis defuncti seing by the Rebellion all his Moveables belonged to the Fisk ipso jure without necessity of tradition for the King jure coronae hath the right of Lands without Infeftment and the right of Moveables forefaulted or fallen in Escheat without Tradition or Possession The Pursuer answered non relevat because the Defender Intrometting without any warrand from the Fisk is quassi prodo and Moveables are not ipso facto in the Property of the Fisk by the Rebellion But if they be Disponed by the Rebel for an onerous Cause the Disposition before Rebellion will be valid or if they be arrested for the Defuncts Debts and recovered by Sentence making forth-coming or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel he will be preferred to the Fisk by all which it appears that the Rebellion transmits not the Property The Defender answered that these Instances do only show that the King prefereth Creditors and takes but the benefit of what the Rebel had deductis debitis or what was Contracted with him bona fide but doth not say that the Property of the Goods were not in the Fisk but in the Rebel The Lords repelled the Defense The Defender further alleadged that not only was the Defunct Rebel but that he had a Gift of his Escheat The Pursuer answered non relevat unless it had been before the vitious intromission or at least ante motam litem The Lords Repelled the Defense unless the Defender would alleadge that the Gift was ante motam litem for they thought that the Taking of the Gift was like the Confirmation of an Executor which purged vitious Intromission being ante motam litem Iohn Bonnar contra Robert Foulis Eodem die JOhn Bonnar pursues Robert Foulis to pay the Debt of a Person Incarcerat by Act of Warding whom the Bailzie set at Liberty without Warrant The Defender alleadged no Processes because the Person Incarcerat was not Called who might have proponed Exceptions against the Debt that it was payed c. Secondly that thereafter the Pursuer had taken himself to the Incarcerat Person and gotten part of payment from him The Lords Repelled the Defenses and decerned but because there was a Reduction depending of the Decreet whereupon the Person was Incarcerat and that he was set at Liberty in Anno 1659. when there was no Iudicatory sitting they superceeded Extracting for the time till the Reduction was Discust Countess of Buckcleugh contra Earl of Tarras Eodem die THe Countess of Buckcleugh pursuing Reduction of a Contract of Marriageâ— betwixt her Sister and the Earl of Tarras The Lords would not Sustain incident for the Earl of Tarras albeit he was minor that Contract being his own Writ and not his Predecessors Lockerbie contra Applegirth Eodem die JOhnstoun of Lockerbie having obtained Decreet against Ierdine of Applegirth for a Sum payed by the Pursuers author as Cautioner for the Defenders Father The Lords found Annualrent due by the Principal to the Cautioner by an Act of Sederunt 1613. and that from the year 1619. until now in respect the Cautioner had payed upon distress by Decreet of Transferrence and a Charge of Horning thereon Acheson contra Mcclean Eodem die DAm Iean Acheson pursues the Laird of Mcclean as representing their Predecessors who was Cautioner in a Suspension The Defender alleadged nothing produced to prove the Suspension Discussed but Letters of Horning upon a Protestation which cannot
Disposition in which there was an expresse Reservation of the Ladyes Liferent so that the Back-bond could import no more then securing of that Liferent The Pursuer answered these words conform to the Disposition were set upon the Margin of the Tickit which was all written by the Defenders hand and might have been added ex post facto 2. The Tickit behoved to import more then the Liferent because the Liferent was fullie and clearly reserved and oftimes repeated in the Disposition so that Clause had been frustrat Thirdly The oblidgment to deliver the Back-bond to the Ladies Husband after her Death could not be understood to be only in relation to her Liferent which and the Husbands interest should cease by her Death The Lords found the Tickit sufficient to instruct Trust but because the Terms of the Trust were not clear They before answer in Relation to the Probation of the Terms thereof Ordain the Parties to Compt and Reckon upon all Sums due by the Lady to the Defender in contemplation of the Trust that the same might be allowed and satisfied to the Defender before he be denuded Iames Slumond contra Wood of Grange Eodem die JAmes Slumond having charged Iames Wood of Grange to pay a Sum wherein he was Cautioner for the Laird of Balcaskie to Williiam Smith merchant in Edinburgh who constitute Richard Potter Assigny who transferred the same to the said Iames Slumond and Suspends The reason of Suspension was because this Bond was payed and retired by Balscaskie the principal Debitor who took a blank Translation thereto from Potter the Assigny which Translation with the Bond it self were surreptitiously taken out of his Coffer by Iames Hay who filled up this Chargers name therein likeas the Suspender produced a Declaration of Potter that the Sum was payed â—o him by Balcaskie and therefore the Suspender craved that the Oaths of this Charger the said Iames Hay and Potter and also the Witnesses who were present at the payment of the Sum might be taken before Answer Which the Lords granted albeit the Charger had the Translation for an oneâ—rous cause Children of Monsual contra Laurie of Naxweltoun February 14. 1662. THE Children of the Laird Monsuel as Executor to their Father pursues Laurie of Maxwelltoun for a Sum due by him to the Defunct who alleadged Compensation upon a Debt due by the Defunct Assigned to the Defender by the Defuncts Creditor after the Defuncts Death and intimat before any Citation or Diligence at the instance of any other Creditor The Pursuer replyed that Debt compensed on cannot take away this Debt pursued for solidum because the Defender as Assigny can be in no better Case then his Cedent and if he were now pursuing he would not be preferred fore his whole Sum but only in so far as the Testament is not yet exhausted or other prior Diligence done for an Executor having but an Office can prefer no Creditor but according to his Diligence much less can any of the Defuncts Debitors by taking Assignation from any of the Defuncts Creditors prefer that Creditor whose intimation is no Legal Diligence The Lords found that the Defender could be in no better Case then the Cedent and could have only compensation in so far as the Inventar was not Exhausted or prior Diligence used they found also that a Decreet against a Defender for making arrested Sums forthcoming at the Instance of an of the Defuncts Creditors was null because the Executor Creditor was not called thereto albeit Decreet was obtainedâ— at the Instance of that Creditor against another Executor in a former Process Lady Muswal Elder contra Lady Muswal Younger February 15. 1662. IN a Contention betwixt the Lady Muswall Elder and Younger upon two Annualrents out of one Barony The Lords Ordained the first Annualrenter to do Diligence within twenty days after each Term that after that time the second Annualrenter might do Diligence or otherwise at her option Ordained the Lands to be divided conform to the Rents Proportionably as the two Annualrents The second Annualrent and the first to take her choise Laird of Pitfoddels contra Laird of Glenkindy Eodem die IN the Revieu of a Decreet in one thousand six hundred fiftie nine at the Instance of the Laird of Pitfoddels against the Laird of Glenkindyâ— in which Decreet Glenkindy Cedents Oath having been taken that the Cause of the Bond was for an Assignation to a Wodset which was excluded by Apprizing after Report whereof Glenkindy the Assigny alleadged that his Cedents Oath could not prejudge him and it being Answered that he made no Objection before the Oath taken neither could make any Just Objection because the Oath of the Cedent any time before Intimationâ— is sufficient against the Assigny Glenkindy Answered that his being called in that Process as Assigny and compearing and Insisting as Assigny was an intimation which was before taking of the Oath which was found Relevant in the said Decreet and now rescinded by the Lords upon this consideration that the Citation being ad hunc offectum to instruct the cause of the Bond the insisting in that pursuite could not be such an intimation as to exclude the Cedents Oath Earl of Bedfoord contra Lord Balmirino February 18. 1662. THE Earl of Bedfoord for satisfaction of his Tocher due by his Father in Law the deceast Earl of Sommerset caused Adjudge in the name of a Person intrusted all Right compent to the Earl of Summerset of the Estate of Iedburgh and being Assigned to the Adjudication pursues the Lord Balmirino for denuding himself of two Apprisings of the Estate of Jedburgh conform to three Back-bonds produced granted by umquhile Balmirino to Summerset acknowledging that he had acquired Right to these Apprysings with Summersets own Money and therefore oblidged him to denude himself thereof The Defender alleadged that his Father being intrusted by the late Earl of Summerset to acquire the Estate of Iedburgh and having the Fee thereof in his Person the Defender is not oblidged to denude himself untill he be Re-imbursed and satisfied of all Sums of Money which after the said Back-bonds he payed for Summerset or advanced to Summerset which can only be accompted to have been in Contemplation of the Trust and is particularly so exprest in Summersets Letters produced bearing that Balmirino should be satisfied of what was due to him out of Tiviotdale whre the said Estate of Iedburgh lyes The Pursuer answered non relâ—vat against him as a singular Successor 2dly Non competit by way of Exception but the Defender hath only Action therefore especially this Trust being fidei-comissum which is a kind of Deposition in which there is neither Compensation nor Retentation competent 3dly there can be here no Compensation because the Debt is not Liquid The Defender answered his Defense stands must Relevant which he founds not upon Compensation but upon the Exception of Retentation which is competent in all Mandats and Trusts by which as there is a
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
his mark it being reasoned amongst the Lords whether this could be accompted a Writ Probative and it being alleadged an Astruction thereof that this Johnstoun being a Merchant and a Drover was accustomed ordinarly so to Subscribe and to give Bills for far greater Sums then this The Lords thought it would be sufficient amongst Merchants though it wanted Witnesses but being unwilling via ordinaria to allow of such a Writ or Subscription for which we have neither Custom nor Decision Yet in respect of the Decreet and of the alleadged Custom so to Subscribe They before answer ordained the Oaths ex officio to be taken of the Writer of the Bill if he could be condescended on by either Party and of the Witnesses who saw Johnstoun Write this mark or receive the Money for which the Bill was granted Creditors of Kinglassie Competings Eodem die IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie It was alleadged for William Hume who had Right to an Annualrent that he ought to be preferred to Joseph Lermont who stood publickly Infeft in the Property in Anno 1655. because albeit the Annualrent of it self was base yet long before it was validat by a Decreet for Poynding of the Ground It was answered that there was no way to make a base Infeftment valide but by Possession here there could be no Possession because the Annualrent was granted to take effect only after the Granters Death and the Decreet thereupon was obtained long before his Death and so could be repute no Possession The Lords were of Opinion that the foresaid Decreet of Poynding of the Ground upon the base Infeftment Ordaining the Ground to be Poynded the Terms of payment being come and bygone was sufficient to validate the base Infeftment and that thereby it remained no more a private Clandestine Infeftment by many other Questions falling in The Matter was laid aside without Decision vide February 27. 1667. Inter eosdem John Kinard contra Laird of Fenzies Eodem die JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie against the Laird of Fenzies who had his Land on the other side thereof alleadging that he and his Predecessors and Authors have been fourty years in Possession of the Myre as proper Part and Pertinent of the Barony of Rossie and that the same is severally kend and known by March and Meith and a Dyke inclosing it from the Defenders Lands It was alleadged for the Defender that he his Predecessors and Authors this fourty years has been in Possession of the said Myre by doing all the Deeds Libelled by the Pursuer which must give them Right at least of common Passurage Fail and Divot therein and therefore craves the Defense to be found Relevant and admitted to his Probation at least that a Cognition might be by an Inquest conform to the Act of Parliament and Witnesses led hinc inde The Pursuer Replyed that he offers him to prove that by the space of fourty years he his Predecessors and Authors Possessed the said Myre not only by the Deeds Libelled but also did divide the same in several Parcels to each Tennent in the Barony and was accordingly Possessed by them which is sufficient to show that they bruiked the same as Property and not a promiscuous Commonty And as for the Defenders Alleadgances of Commonty by common Pasturage c. The same ought to be Repelled because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time which hindered him to Acquire a Right of Commonty by Possession and Prescription and he cannot alleadge that he hath any other Right by express Infeftment and therefore being so much more pregnant then the Defender there ought to be no Cognition but he preferred in Probation The Lords Repelled the Defense in respect of the Libel and Reply but granted Commission to one of their number to Examine Witnesses for the Pursuer omni exceptione majores after which the Defender passing from his Compearance The Lords Declared they would give the Extract of the Interlocutor to the Pursuer and give his Libel and Reply by way of Condescendence and Declaration of the manner of the Property and of his Possession to his Probation Viscount of Stormount contra Heirs of Line and Creditors of the Earl of Annandale Eodem die THE Viscount of Stormont pursues a Declarator against the Heirs of Line of Umquhil James Earl of Annandale and several Creditors of the said Umquhil Earl who had Appryzed the Lordship of Skoon and were Infeft thereupon to hear and see it found and declared that David Viscount of Stormount had Disponed these Lands to Mungo Viscount of Stormount his Brother and the Heirs-male of his Body which failzing to Andrew Lord Balvaird and the Heirs-male of his Body c. with this express provision in the Charter and repeated verbatum in the Seasine that it should not be leisom to the said Mungo or any of the Heirs of Tailzie for the time to alienate the Lands or alter the Tailzie or to do any Deed whereby the same may be evicted or Apprized from the Heirs of Tailzie otherwise their Right should expire and should belong to the next Heir of the Contraveener and that thereby Iames Earl of Annandale last Infeft had contraveened the said Clauses by contracting thir Debts whereupon the Lands were Apprised and thereby had lost his Right and that the saids Creditors Bonds and their Apprizings are thereby null and void and likewise that the said Iames Earl of Annandale his Retour was null and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont as if the said Iames Earl of Annandale had never been Infeft The Defender alleadged First No Proses in this Order without a Reduction without which no Infeftment can be taken away The Lords Repelled this Alleadgence and found that a Declarator was al 's effectual as a Reduction when all was produced that was necessar to be produced before the ground of Nullity were Discussed with which all the rest will fall in consequence and that Reduction was only necessar to force tho Defenders to produce by the Certification but if the Defender would produce himself he might proceed by way of Declarator of Nullity Secondly The Defender alleadged no Processes because by the Co-ception of the Clauses irritant the Rights is declared to belong to the nearest Heir of the Contraveener and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird hath no Interest till he be served Heir-male to Iames Earl of Annandale the Contraveener in which case he cannot quarrel his Deeds or Debts The Pursuer answered that by Heir here cannot be understood the Heir actually served but the Person only that might be Heir for the Pursuer insisted in this same Processes against the Earl of Annandale when he was living and could not have been then excluded because he was not his heir
and therefore as is ordinar in all Clauses in relation to Heirs which cannot be effectual if Heirs served be understood their Heirs appearing are understood verba sumenda sunt cum effectu The Lords also Repelled this Defense Thirdly The Defenders alleadged absolvitor Because first Clauses de non alienando are never understood to extend to necessary alienations as for provision of the Feears Wife and Children for Redemption of him from Captivity or any other accident without his Fault Secondly Clauses de non Contrahendo debitum are against Commerce and utterly rejected Thirdly Clauses irritant are resolutive albeit contained in the Infeftment are but personal obliegements and the ground of an Action against the contraveener but if the Contraveener be denuded are not effectual against singular Successors Especially Creditors Contracting bonafide with one standing Infeft before the matter became litigious by Processes upon that Clause seing no Inhibition was used ita est thir Creditors had Apprized and were Infeft before any such Processes upon this Clause or Inhibition used and no personal provision could transmit the Right from Annandale to Stormount upon contraveening the Clausses nor could hinder the transmission thereof from Annandale who had the only real Right to the Creditors by vertue of their Appryzings and Infeftments which denuded Annandale of the real Right and which real Right stands now only in the Person of the Creditors Infeft so that there can be no more in Stormounts Person but a Personal Provision for the being within the body of the Infeftment will not make this Clause real and to affect the Right quo ad singulares successores more then the Clause of Warrandice in the Infeftment which without question reaches not singular Successors and albeit some Provisions in themselves Personal may affâ—ct singular Successors as the Provision that if two years run together the Feu shall become void or the Clauses of Reversion or the Inherent Clauses or quality in Ward holding but these become real by Law and Statute for we have a particular Act of Parliament anent Reversions to be effectual against singular Successors and another anent Feus â—b non solutum canonem and there is no other case that such Provisions are real The Pursuer answered to the fiâ—st albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition and are oftimes not extended to necessar Alienations Yet here the Clause bears expresly not to altenat and also to do no Deed whereby the Laws may be Evicted and Apprized without which the Clauses de alienando were utterly ineffectual and repeats the same to tâ—e second As to the third albeit de facto the real Right be in the Appryzers Infeftment yet it is in them effected with that quality in the condition and bosome of it that gives good ground not only against the Earl of Annandale Contraveener to annul his Right But also the Apprizer in consequence quia resoluto jure dantis resolvitur jus accipientis Especially in Feudal-rights where provisionis investiturae sunt legis feudi as all Feudists agree and therefore all such Pactions and Provisions are equivalent to Law 2d This Clause of the Infeftment is not only resolutive but also is an Interdiction Prohibiting the Feear for the time to alienat or do any Deed prejudicial without consent of such other Persons of the Tailzie were Majors for the time and therefore though the Pursuer should enter Heir to Annandale he might annul these Rights just as in the Case of an Heir of an Interdicted Person who may annul all Rights by his Predecessors after the Interdiction The Defenders answered that as to this Point concerning the Interdiction it cannot be effectual because by a particular Act of Parliament all Interdictions are appointed to be published and to be Registrat in the Registers of Inhibitions otherways they are null This Interdiction is neither published nor Registrat in that Register The Pursuer answered it is al 's publick because it is not only in his Infeftment at the great Seal but it is verbatum in the first Seasine and repeated in the Earl of Annandales Retour and Seasine so as that the Creditors ought to have considered his condition when they lent him Money and known that he was Infeft otherwise their mistake though it might be alleadged to be bona fidae yet if Annandale hade never been Infeft their bona fides would have wrought nothing seing therefore they did it on their peril unless they knew he was Infeft and they could not know he was Infeft by inspection of his Seasine or of the Register but they behoved to know this Clause which is verbatum in it The Lords did also Repel this Defense and Duply in respect of the Reply and Triply and found the resolutive Clause effectual against singular Successours especially considering it was so publick and verbatim in the Seasine and that it was equivalent to an Interdiction Thirdly The Defender further alleadged absolvitor because the pursuer hadâ— behaved himself as Heir to the Earl of Annandale by Intromission with the Mails and Duties of the same Lands The Lords Repelled this Defense because the Pursuer having intented Declarator against Annandale in his own life they thought the provision was equivalent to an Interdiction which purged that passive Title Creditors of Kinglassie February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day the Dispute anent the base Infeftment made publick by the poinding of the Ground so long before the Term of payment being reasoned before the Lords in presentia they sustained the same as before Marjory Chalmers contra William Dalgardno Eodem die MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods to pay his Debt who alleadged absolvitor because the Rebel died at the Horn and so had no Goods Secondly The Defender hath the gift of his Escheat and also is Executor Creditor Confirmed to him Thirdly The Defender had a Disposition of all the Defuncts Goods albeit he possessed not thereby during his Life yet he might Enter in possession after his Death and not be vitious Intromettor The Lords found this Defense Relevant to elide the passive Title but prejudice to either Party to Dispute their Rights as to the simple avail of the Goods and they Repelled the first Defense and found the second and third Defenses Relevant only if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun February 28. 1662. WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun as Successor titulo lucrâ—â—ivo to his Father to pay his Debt who alleadged absolvitor because he was not alioqui successurus in respect that at the time of the Disposition he had and hath an Elder Brother who went out of the Countrey and must be presumed on life unless the Pursuer will offer to prove that he was Dead before this Disposition so that at the time thereof the Defender was not
appearand Heir alioqui successurus because vita presumitur The Pursuer answered the Defense was not Relevant unless the Defender would be positive that the time of the Disposition his Elder Brother was on life especially seing he had been out of the Countrey twenty years and was commonly holden and repute to be Dead The Lords sustained the Defense that the Elder Brother was on life the time of the Disposition and reserved to their own consideration the Probation in which if the Defender proved simply that his Brother was actually living the time of the Disposition there would remain no question and if he prove that he was living about that time they would consider whether in this Case the presumption of his being yet living should be probative Paâ—rick Herron contra Martein Stevenson Iune 17. 1662. PAtrick Herron having obtained Decreet of Removing against Martein Stevinson he Suspends on this Reason that the Decreet was not upon Litiscontestation but a time being Assigned to the Suspender to find Caution for the violent Profits and he failing was Decerned without being admitted to any Defense and now alleadges that he ought not to remove because he obtained Decreet of Adjudication of the Lands in question against the common Author and thereupon charged the Superiour long before the Chargers Decreet of Adjudication or Infetment The Charger answered that the Reason ought to be Repelled because the Decreet was given against the Defender compearing and failing as said is Secondly The Charger stands Infeft upon his Adjudication The Pursuer was never Infeft neither did he use all Diligence to get himself Infeft not having Denunced the Superiour and in case he had Suspended Discussing the Suspension The Lords found the Reason Relevant and Proven and Suspended because they found no necessity for an Appryzer to use further Diligence against the Superiour then the Charge of Horning unless the Superiour had Suspended both and that in competition the other Party had done greater Diligence Earl of Marischal contra Charles Bray Iune 18. 1662. THe Earl of Marischal having obtained Decreet in his own Baron Court against Bray compearing for a years Rent of his Maines of Dunnottor herein he had been possest by the English Bray Suspends and alleadges compensation upon a Bond assigned to him due by the Charger who answered competent and omitted and so not receivable in the second Instance especially being Compensation which by special Act of Parliament is not to be admitted in the second Instance The Lords Sustained the Reason of Compensation and found that a Baron Court was not such a Iudicature as that Alleadgences competent and omitted that should be Repelled in the second Instance Mr. Iohn Wallace contra Forbes Iune 19. 1662. RObert and William Forbeses and Heugh Wallace being bound in a Bond as Co-principals Heugh Wallace being Distressed for all consigned the Sum to this Chargers Son Forbes Suspends on this Reason that there is no Clause of Relief in the Bond and Wallace being Debitor in solidum and having gotten Assignation confusione tollitur obligatio The Charger answered that though there was no Clauses of Relief hoc iâ—est where many Parties are bound conjunctly and severally that each is oblieged to relieve others The Lords Repelled the Reason of Suspension for the Suspenders part and found them lyable therefore but not for the other Co-principal Parties Isobel Drummond contra Iean Skeen Eodem die ISobel Drummond pursues Iean Skeen as behaving her self as Heir to her Brother Iames Skeen by uplifting the Mails of the Lands wherein he Dyed Infeft to fulfill her Contract of Marriage with Iames. The Defender alleadged absolvitor because the uplifted those Duties by vertue of her Infeftment being Served Heir to Iohn Skeen Son to Iames Skeen the Pursuers Debitor who was Infeft not as Heir to his Father Iames but as Heir to her Good-sire The Pursuer answered in respect to the Defenders Seasine or to Iohn Skeens which were evidently null seing Iames Skeen was Infeft and so John could not pass over him to his Goodsire and if any regard were to such Infeftment it would open a Door to all Fraud and abstracting of Defuncts Creditors Evidents The Lords found the Defense Relevant to purge this viticus passive Title seing the fâ—â—â—zie was not in this Defender but in John Skeen his Brother Son but prejudice to Reduce as accords but ordained her to Renunce to be Heir to James that Adjudications might be obtained Mr. Alexander Vernor contra George Allan June 24. 1662. MR. Alexander Vernor as Executor to Mr. David Calderwood Charges George Allane to pay a part of the Defuncts Stipend as he who intrometted with the Teinds of the Lands lyable therefore whereupon he had obtained Decreet The Suspender alleadged that the Decreet was in absence and any intromission he had was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor to whom he made payment bona fida before any Arrestment or Pursuit against him The Charger answered non Relevat because the Suspender is oblieged to know that by Law the Teinds are lyable for the Ministers Stipend Secondly He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual but that he took Disposition of the Corns ipsa corpora before they were drawn The Lords found the answer Relevant to elide the Reason and found the Defender lyable for the tenth part of the Cornes he bought Robert Hay contra Hoom of Blackburn Eodem die RObert Hay Tailzior pursues Hoom of Blackburn as representing his Father upon all the passive Titles to pay a Debt of his Fathers The Defender alleadged absolvitor because there was nothing produced to instruct the Debt but an Extract out of the Register bearing the Bond to have been Registrated by his Fathers consent whereas it is nottour and acknowledged by the Summons that his Father was Dead long before the Date of the Registration The Pursuer answered the Extract is sufficient to instruct the verity of the Bond being in a publick Register of the Session alb it the Defunct was Dead the time of the Registration which might have been the Creditors mistake and cannot prejudge them seing vitapresumitur especially now when through the loss of the Registers principal Writs cannot be gotten The Defender opponed his Defense and the Decisions of the Lords lately in the like case concerning the Earl of Errol because nothing can instruct against any man but either a Writ Subscribed by him or the Sentence of a Judge upon Citation or consent and this is neither The Lords refused the Extract simply but ordained the Pursuer to condescend upon Adminicles for instructing thereof either by Writ or Witnesses who saw the Bond c. of Woodhead contra Barbara Nairn Eodem die WOodhead pursues Barbara Nairn for the Mails and Duties of certain Lands The Pursuer alleadged absolvitor because she Defender stands Infeft in Liferent of these Lands It was Replyed The Defenders Husband
are not called this being an Action that in effect terminateth upon a Perambulation or Determining of the Marches It is a Real Action and there is necessity to call the Heirs of Sir Iohn Hope who died last vest and seased in the other adjacent Lands The Pursuer answered that he offered him to prove that Sir Iohn had Disponed in favour of Sir Alexander and resigned in his time It was answered for Sir Alexander that Sir Iohn was not Denuded seing no Infeftment followed and the Disposition is but an incompleat Personal Right so that some having the Real Right must be called The Lords repelled the Defense in respect of the Reply It was further alleadged for Sir Alexander that he had builded a park dyke upon a part of the Ground in Question before the Pursuers Right sciente astante domino the former Heretor having never opposed nor contradicted which must necessarily infer his consent The Pursuer answered that it was not relevant to take away any part of the Property upon such a presumptive consent neither was he oblieged to disassent seing he knew that which was builded upon his Ground would become his own in edificatum solo cedit The Lords repelled this Defense also but they thought that the taciturnitie might operat this much that Sir Alexander might remove the materialls of his Wall or get from Patrick Nicol quantum partem est lucratus by the building of the Wall Murray of Merstoun contra Thomas Hunterr Eodem die MVrray of Merstoun pursues Thomas Hunter fot a Spulzie of Malt who alleadged that as to that member of the Lybel of the Spulzie of the Malt by the Defenders hunding out or command It is only relevant scripto vel juramento The Pursuer answered that she qualified the Probation thus That the Defender intrusted a Messenger or Officer to execute a Precept of Poynding by delivering him the Precept and therefore the Precept with the execution thereupon is sufficient Probation The Defender answered that the same is not sufficient because the Officer execute the Precept extra territorium whereby it became a Spuilzie which ought not to be imputed to the Defender unlesse it were offered to be proven that he ordained the Officer to Poynd this Malt without the Jurisdiction and that only scripto vel juramento The Pursuer answered that as the giving of a Precept of Seasin is a sufficient warrant without any other Procuratry whatever the effect of the Seasin be so must the delivery of the Precept of Poynding be sufficient to instruct the warrand or command to Poynd where-ever the Poynding was execute and the user of the Poynding should be lyable to the deeds done by the person he intrusts Especially seing not only the Messenger was sent but other Servants and Messengers imployed by the user of the Poynding The Lords found the giving of the Precept of Poynding to the Messenger and his unwarrantable poynding Extra territorium not sufficient only but found it relevant to prove by the Messenger and Defenders Servants imployed by him their Oaths that they were commanded to Poynd this Malt or other goods in this place being Extra territorium Skeen contra Lumsdean Eodem die SKeen having charged Alexander Lumsdean for payment of a Bond for which he was Cautioner for Mr. Thomas Lumsdean his Brother Alexander Suspends on this Reason that the Bond was granted for a Bill of Exchange drawn by one Dutch man upon another to be payed to Skeen or his Order which Bill Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean for which this Bond was granted Ita est the saids Bills of Exchange were not payed but protested and is assigned by Mr. Thomas Lumsdean and his Spouse to the Suspender at least if any payment was made to Mr. Thomas Lumsdean the Cedent it was after the Assignation to Alexander Lumsdean the Suspender and intimation thereof It was answered for the Charger that the Reason ought to be repelled because he offered him to prove by Mr. Thomas Lumsdean at that time Factor at Campheir his Compt-book that albeit the Bills was once protested yet they were payed before Assignation or Intimation The Lords before answer having granted several Commissions to the Magistrats and Conservitor at Campheir to view and examine the Compt-book which was at Campheir They reported that in such a Page of the Book there was three Articles of Receipt in part of payment of the Bills after which Pages the Book was containued and several Compts written therein and that it was Authentick and Unvitiat and all written with the hand of Iohn Muire Mr. Thomas Stepson who was his Book-keeper and that they had been a long time since out of Mr. Thomas hands about the time he Bankerupted and that they had examined upon Oath him who drew the Bill amd him upon whom the Bill was drawn both who had sworn payment was made the question was whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney It was alleadged It could not seing it had no more Effect then as Holograph Discharge which might be made up after the Assignation and therefore proves not against the Assigney It was answered that though a Holograph Discharge will not prove alone yet if by other Adminicles Writs or Witnesses it appeas that the Date is true at least is prior to the Assignation or Intimation it will be sufficient against the Assigney so the Adminicles here are pregnant and strong to prove the time of payment contained in the Compt-Book The Lords found the Compt-Book and Adminicles sufficient here against the Assigney especially considering that the Cedent was his Brother and that it was not presumable that he would do any Deed in making up these Receipts in his Compt-Book in prejudice of his Brother Thomas Beg contra Sir Thomas Nicolson Ianuary 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk he Suspends on this Reason the Charger is only Liferenter and hath no right to lift the Sum because the Bond is conceived thus to Thomas Beg and his Spouse the longest Liver of them two in Conjunct-fee and to the Bairns procreat betwixt them which failzing to two Bairns of a former Marriage Thomas and Margaret Begs and which Bond contains a Precept of Seasife for Infefting the said Thomas and his Spouse and the Bairns of the Marriage which failzing the said Thomas and Margaret Bairns of the former Marriage according to which there was a Seasine taken not only to the two Spouses but to the two Bairns nominatim who therefore are Feears The Lords repelled the Reason because having considered the Bond and Infeftment conceaved as aforesaid they found the Husband by the Conjunct-fee to be Feear and the Bairns of the Marriage to be destinat Heirs of Provision and the said Margaret and Thomas to be only substitue as Heirs of Tailzie failzing the Bairns of the Marriage and that therefore if the Father
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra 〈…〉 Ianuary 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing the
Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
the Houses The Lords found there was yet place to Resile and therefore assoilzied Margaret Stevenson and her Son contra Ker and others Eodem die MArgaret Stevenson pursues Margaret Ker as vitious Intromissatrix with the Goods of her Husband for payment of a Debt wherein he was Cautioner She alleadged absolvitor because her Iutromission was purged in so far as she had Confirmed herself Executrix Creditrix It was answered by the Pursuer non relevat unless before intenting of the Cause The Defender answered it was sufficient being within year and day after the Defunct's Death Which the Lords found Relevant Lord Balnagoun contra M. Thomas Mckenzie Eodem die BAlnagoun as Donator to the Escheat of his Father pursues Mr Thomas Mckenzie for the price of some Lands sold to him by his Father and for the annualrents since It was answered for the Defender that there was no Annualrent due by the Minute and albeit it was the price of Land yet Balnagoun had never made Mr. Thomas a Right to this day but had forced him to be at a huge Expenses and Plea and so was in mora that the price was not payed and albeitâ—he did possess the Lands it was by redeeming Wodsets thereupon contained in the Minute The Lords found Mr. Thomas lyable either for the Annualrent or for the superplus of the Rents of the Land more then payed the Annualrent In this Process it was found that the Probation of a Tenor before an Inferiour Iudge was null Margaret Edgar contra Iohn Murray Ianuary 29. 1663. MArgaret Edgar having Charged Iohn Murray as Cautioner for the umquhil Viscount of Stormont he Suspends and offers him to prove by her Oath that she transacted with him to accept a Decreet against the principal to free him The Charger answered that she being a Wife clade with a Husband could not swear in his prejudice The Suspender Replyed that before her Marriage he had raised a Pursuit and Cited her to hear and see it found and declared he was free of Cautionry in respect of the said Transaction and so the matter being Litigious her marrying during the Dependence cannot exclude him from his Oath but must work against her Husband who is only jure mariti a Legal Assigney The Lords found this Reply Relevant Scot contra Mr. John Dickson Eodem die SCot as Assigney by her Father to a Bond Charges Mr. Iohn Dickson to make payment he Suspends on this Reason that the Assignation being while the Charger was Wife to Scot her Husband the Sum belonged to the Husband jure mariti and therefore craves Compensation of the like Sums payed to or for the Husband The Charger answered that though the Date of the Assignation was before her Husbands Death yet her Father keeped the same in his Custody and it was not Intimate till after the Husbands Death and so the Right not being Established in the Wifes Person by Intimation could not accresce to the Husband unless the Suspender would instruct that it was Intimate before The Lords found that seing the Assignation was now in the Wifes hands they would not put the Suspender to prove the Delivery thereof during the Marriage but that it was presumed to have been delivered according to the Date and that thereby it became the Husbands jure mariti though no Intimation was in his time Archibald Stuart contra Bogle and Matthie Ianuary 30. 1663. BOgle and Matthie being Conveened before Archibald Stuart as Baillie of the Regality of Glasgow for a wrong committed upon two other Persons in the Kirk upon the Sabbath thrusting in upon them in Seat and beating them they were therefore amerciat in 200. Pounds half to the Party and half to the Fiskall It was alleadged the Fine was exorbitant and that Inferiour Courts could not amerciat above ten Pounds as it had been found by several Decisions It was answered that this Court being a Regality and the Fact so atrocius the Fine was very Competent The Lords Sustained the Decreet Town of Linlithgow contra Inhabitants of Borrowstounness Eodem die THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness in their Town being an un-free man and exercising the Trade of Merchandise they put him in Prison he granted Bond to forbear in all time coming Likeas they fined him in a 100. merks he Suspended and raised Reduction on this Reason that the Bond was extorted when so far as he was summarly taken and put in Prison and could not get out till he promised to give the Bond and immediatly after he was out subscribed the same The Charger alleadged there was no unjust force or fear because by the Acts of Parliament in favours of Free Borrows all unfree men are discharged to exercise the Trade of Merchandise whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom Secondly They and all other free Borrows had immemorially possessed this priviledge to apprehend persons found within their Town and forced them to find Caution as Law will upon Debt due to any in the Town and particularly to put them in Prison till they give such Bonds in Surety as this The Suspender answered to the first there was no such Warrand by the Act of Parliament but only to Charge with general Letters un-free men to find Caution and for the Priviledge of Borrows to arrest un-free persons within their Towns it is only in case of Debts and other Merchandises due to Burgesses but cannot be extended to this Case where there is a special Order set down by Act of Parliament The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men and might judge thereanent but not summarly Incarcerate their Persons but only to Charge them and found their Custom and Priviledge not to extend to this Case and therefore found the Reason of Reduction Relevant The Lady Carnagy contra The Lord Cranburn Eodem die LAdy Anna Hamiltoun and the Lord Carnagie her Husband as having obtained a Gift of Recognition from the King of the Barony of Innerweek and being thereupon Infeft pursues the Lord Cranburn to whom the samine was Disponed by the Earl of Dirletoun Grand-Father to both for declaring the Recognition and the Donatrix Right in so far as Iames Maxwel late Earl of Dirletoun holding the saids Lands of His Majesties Ward and relief had without His Majesties consent Alienat and Disponed the same to Iames Cicile his Oye then second Son to the Lord Cranburn procreat betwixt him and the Earl of Dirletouns second Daughter It was alleadged for the Defender absolvitor because where there was no Infeftment there could be no Alienation nor Recognition and there could be no Infeftment without the same were granted to the Disponer or his Procurator to the accepter to his Procurator but here there was no accepter nor Procurator because Cranburn being then a Child and in England had granted no Mandat to take this Seasine and therefore had raised Reduction thereof
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
general Declarator it were not competent not being instantly verifyed without Reduction 3ly It were not probable but by Writ before the Denunciation and not by the Creditors Oath or having discharges being in prejudice of the KING but that no hazard might be of ante-dating it was required by Act of Parliament that beside the Writ the Parties should depone upon the truth of the Date The Defender answered to the first all Defenses competent in the general Declarator are reserved in the special To the second there is a Reduction depending The Lords found the Defense relevant only scripto of the Denuncer The Defender further alleadged the Horning was null as being upon a null Decreet and falling therewith in consequence The Lords repelled the Defense and found though the Decreet were null through informality yet the Horning would not be anulled but the Partie was in contempt in not Suspending debito tempore Compearance was also made for Mr. William Lauder who alleadged he had Disposition from the Rebel before year and day run The Lords found this Alleadgeance not relevant unless it were alleadged to be for a just Debt before the Denunciation It was further alleadged for Mr. William that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift by his appointment and he offered to satisfye the Donatars Debt and the whole expense of the Gift The Lords found this not relevant without a second Gift or Declaration from the Thesaurer Thomas Crawfoord contra 〈…〉 Eodem die THomas Crawfoord as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors It was alleadged no Process because Thomas as Factor for Robert Inglis had pursued the same Partie for the same Cause before the Commissaries of Edinburgh wherein Litiscontestation was made and so now it cannot be pursued elsewhere but the Process ought to be transferred and insisted in The Pursuer answered that he pursued then as Factor but now as Executor-Creditor who did not consider what Diligence Defuncts did but might insist therein or not 2dly This being a dilator is not instantly verifyed The Lords found the Defense relevant but would not find it competent unless instantly verifyed and because it behoved to be instructed by an Act Extracted Catharine Frazer contra Heugh Frazer February 11. 1663. THe said Catharine only Child of a second Marriage being provided to eight thousand merk of Portion at her age of 14 years but no oblidgment of Aliment or Annualrent till then pursues her Brother as Heir to her Fathers Estate being of a good condition for Aliment He alleadges he was oblidged for none not being Parent nor his Father oblidged by Contract or Bond for it The Lords found an Aliment due for the Pursuers Mother was not alive and able to Aliment her Lockie contra Patoun February 12. 1663. ELizabeth Lockie Spouse to Doctor Patoun pursues a Reduction of a Disposition granted by her Husband to certain Persons as prejudicial to her Contract in which Contract there was a Clause declaring Execution to pass at the instance of certain Persons who concur with this pursuit The Lords sustained the pursuit though it was not for Implement but for Reduction of a Right impeding the benefit of the Contract without concurse of the Husband seing the Process was against a Deed of the Husbands and he called passive Earl of Southesk and Carnegy contra Bromhall Eodem die BRomhall having taken the Lord Sinclar with Caption Southesk and his Son gave Bond to produce him to the Messengers or to pay the Sum. on the third of February betwixt two and ten whereupon Southesk having reproduced him craved by Supplication his Bond up or to be declared satisfied and extinct The Defender answered First He not being a Member or Dependent on the Colledge of Justice cannot be called thus summarily especially to declare a Bond void which is in effect a Reduction 2dly The Bond was not performed in so far as the Lord Sinclar was not reproduced till the 4th of February The Pursuer answered that the Defender living in Edinburgh and not compearing the Bill per modum quaerelae might be sustained To the second it being modica mora of one day without damnage to the Defender and there being trysting amongst the Parties all the time betwixt it was sufficient The Lords sustained the Petition and found it extinct Relict of George Morison contra His Heirs Eodem die THis Relict pursues for Implement of her Contract It was alleadged she had accepted a Wodset in full satisfaction thereof which now being Redeemed she could crave no more but Re-imploying the Money to her in Liferent The Lords found that this acceptance by the Wife being donatio inter virum uxorem she might now revock it and therefore found the Heir lyable to make up what was in the Contract The Town of Linlithgow contra Unfree-men of Borrowstounness February 13. 1663. THe Town of Linlithgow insisted in their Charge upon a Bond granted by some Inhabitants of Borrowstounness oblidging them to disist and cease from usâ—ing the Merchant Trade under the pain of 500 merk which was Suspended on this Reason that the Bond was extorted by unwarrantable force in so far as the Suspenders were taken in Linlithgow brevi manu and incarcerat till they granted the Bond. The Charger produced a Decreet of the Lords in Anno 1643. against several Inhabitants in Borrowstounness compearand who having Suspended the general Letters upon Act of Parliament for finding Caution to desist c. The Letters were found orderly proceeded and the Town of Linlithgow impowred not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness if they medled in Merchant Trading but also bearing with power to put the Persons using the saids Merchant Trade in Prison till Justice were done upon them and thereupon alleadge that the Suspenders being incarcerat by vertue and conform to the foresaid Decreet standing there was no unwarrantable Force used 2dly They produced an Act of the Council of Linlithgâ—w Bearing the Suspenders to have compeared before the Council and to have confessed their wronging of the said Town in the Trade of Merchandize and that there was Horning and Caption against them for the Cause and therefore declared their willingness to grant the Bond in Question The Suspenders answered to the First That albeit the foresaid Decreet bear compearance yet there is no Dispute in it and it is evident to be by Collusion and Surreptitious because this Conclusion now alleadged is ultra petita there being no such thing in the general Letters nor doth the Decreet bear any special Charge given neither is this Conclusion warrantable by any Law or Act of Parliament 2dly This Decreet could be no warrant to Incarcerat the Suspenders because it is given only against some particular Persons then living in Borrowstounness without calling either of the Barron or Baillies of the Burgh of Bâ—rronie and therefore is null as to any other Persons and as to the
Benefice by his Right of Presentation and Collation It was alleadged for the Collectors of the vacant Stipends that his Stipend was not as the allowance of an helper but was a several Congregation separate from the Parsonage of Peebles and at the Parsons Presentation and that no helper has a Presentation and that the Incumbent not being admitted till after Michaelmess has no Right to any part of the Fruits of that year though he was Presented before because the Kirk cannot be said to be full but vacant till the Minister be admitted The Lords found that this Kirk having a Presentation could not return in the vacancy to the Parson of Peebles and that the Presentation being at Lambas and the Incumbent serving at the Kirk and Entring to his Tryals immediatly till he was Entred which was in October thereafter and that he had Right to the half of that years Stipend not being presented before Whitsonday and found the other half to belong to the Collector of vacand Stipends Lairds of Tulliallan and Condie contra Crawfoord Eodem die THe Lairds of Tulliallan and Condie as having a Right from him pursues Declarator of the Expiration of an Appryzing led at the Instance of Crawfoord to which Margaret Crawfoord his Daughter has now Right and condescends that the sum Appryzed for was satisfied within the Legal by Compensation in so far as Tulliallan had Right to a Contract whereby Crawfoord the Appryzer was oblieged to deliver so many Chalders of Coal weekly or in Case of Failzie four pounds for ilk Chalder It was alleadged for the Defender that this Article of Compensation ought to be repelled First because the said Contract is prescribed 2ly The Appryzing proceeded upon a Decreet of Compt and Reckoning wherein an Alleadgence being founded upon the same Contract was past from pro loco tempore and so can never now be made use of to take away that Decreet much less the Appryzing against a singular Successor who seing the same past in tuto to take Right without the hazard thereof 3ly The Defender cannot be oblieged after fourty or fifty years time to prove the Delivery of an yearly Duty of Coal 4ly The Compensation is not de liquido in liquidum because the one is a personal Contract the other is an Apprysing and Infeftment the one hath not a liquid price Constitute but bears expresly such a Sum in case of failzie and not as the price which being much more then the ordinar price then is but a personal failzie which cannot be liquidat till Declarator and modification of a Judge The Pursuer answered that he was evicting the rigor of an Appryzing in causa maxime favorabili And as to the first alleadgence anent the Prescription offers to prove Interruption by Arrestments c. To the second not Relevant according to the Custome before the years 1649. competent and omitted was not relevant against Decreets of Suspension But Suspenders might either omit or pass from their Reasons and Suspend upon them again which could not but be alswell effectual against the Assigney as the Cedent As to the third this Article being instructed by Writ no presumption nor less time then Prescription could take it away To the which the Coals having a liquid Sum in lieu thereof the Article is liquid and as payment within the legal will annul an Appryzing so will Compensation which is equiparat in Law though the Case would not be alike in a Wodset against a singular Successor The Lords found the Defenses against this Article relevant viz. that the Article was not liquid by a Sum Constitute expresly for a price and that it being alleadged that in the Decreet this alleadgeance was past from and an expresse reservation that it might be made use of against any other just Debt then that which was in the Decreet whereupon the Appryzing proceeded The Lords had also consideration that the Legal of the Appryzing was not yet expired Lyon of Muirask contra Laird of Elsick Eodem die LYon of Muirask pursues the Laird of Elsick upon a Debt of his Fathers as Successor titulo lacrativo The Defender alleadged absolvitor because any Disposition he had from his Father was in his Contract of Marriage whereby 10000â— merks of Tocher was received by his Father and 14000. merks of Debt more undertaken for his Father with the burden of his Fathers Liferent The Pursuer answered the alleadgeance ought to be repelled because he offered him to prove that the Land Disponed was then worth fourty or fifty Chalders of Victual so that the Cause onerous was not the half of the value and therefore as to the Superplus he was Lucrative Successor The Defender answered that any onerous Cause or price though incompetent was enough to purge this passive Title and albeit the Pursuer might reduce the Right and make the Lands lyable because the Cause was not onerous and equivalent yet he could not be personally lyable in solidum for all the Defuncts Debts The Lords having seriously considered the bussinesse after a former Interlocutor the last Session Assoilzing from the passive Title but finding the Lands redeemable by the Pursuer or any other Creditor for the sums payed out did now find further that the Defender was lyable for the superplus of the just price of the Land according to the ordinar Rate the time of the Disposition and that the superplus over and above what he payed or undertook ought to bear Annualrent as being the price of Land Iames Iustice contra Earl of Queensberry Eodem die IAmes Iustice as having right to a Bond of 6000. merks due by the Earl of Queensberry pursues the Earl and the Lord Drumâ—anrig his Son as taking his Estate with the burden of his Debt to pay it who alleadged no Processe because the Pursuers Right was an Assignation granted by a Tutrix not bearing in Name of the Pupil or as Tutrix in his Name because being in infancy he could not subscribe but bearing to be done by her as taking burden for the Pupil The Lords found the Assignation not formal not bearing the Pupil Disponer with his Tutrix but yet found the Letters orderly proceeded the Charger before Extract producing a Ratification by the Pupil and Tutrix formally done Laird of Prestoun contra Nathaniel Ebred Iune 24. 1664. THe Laird of Prestoun pursues Reduction and Improbation against Nathaniel Ebred of all his Rights of certain Lands The Defender alleadged Absolvitor because the Lands in question are Abbay-lands Erected in a temporal Holding in favour of Prestoun and therefore by the Act of Parliament 1633. all such Lands are annexed to the Crown and the Feu-duties are only found due to the Lords of Erection ay and while they be redeemed which is repeited in the 30. Act of Parliament 1661. and therefore the Pursuer not being Superiour but the King he has no interest to Improve of Reduce The Pursuer answered that he opponed his Infeftment of the Lands holden of the King
that Term was past before his Presentation at least before his Institution and Collation 2ly There being but a Decreet of Modification and no Locality The Earl alleadged Locality should be first made and he lyable but for his proportional part of the Stipend The Lords found that the Stipend affected the Teinds and the Minister might take himself to any of the Heretorsâ— in so far as he had Teind and therfore sustained the Condescendence and ordained the Charger to prove what Teind my Lord had without prejudice to him to crave his Relief Lady Craig and Greenhead her Husband contra Lord Luire Decemb. 7â— 1664. THe Lady Craig being Infeft in Liferent pursues her Tennents Compearance is made for the Lord Luiâ—e who Appryzed the Lands of her Husband and alleadges that he ought to be preferred because he stands publictly Iâ—feft and any Right the Lady has is but base holden of her Husband and before she attained Possessionâ— he was publickly inâ—eft It was answered for the Lady that her Husbands Possession is her Possession and so her Infeftment was cled with Possession from the Date thereof It was answered that that holds only in the case of an Infeftment to a Wife upon her Contract of Marriage but this was but an additional gratuitous Infeftment stante matrimonio she being competently provided before by her Contract In which case such Provisions cannot prejudge Lawful Creditors neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife unless she had Possessed seven years after his Death The Lords found that such Infeftments as these being gratuitous and voluntar could not be prejudicial to the Husbands Creditors nor give the Wife a possessory Iudgement And the case here being with a Creditor of the Husbands they did not proceed further to consider and determine if the Husbands Possession in such a case would not validat the base Right as to any acquired Right thereafter Eccles contra Eccles. Eodem die IN an Action of a Compt and Reckoning betwixt these two Infants It was alleadged for the Defender that he being pursued upon his Fathers back-bond oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother to Thomas Ecclesâ— and umquhil Andrew Eccles the Pursuers Father It was answered upon condition that Mr. Hugh the Defenders Father should have the third part to himself The Question was concerning the manner of Probation The Pursuer alleadged it was only probable scripto he being a Pupil and his Father dead The Defender alleadged it was probable by the Tutors Oath being so likely in it self that Mr. Hugh being the third Brother should have the third share and that Thomas the Tutor did accordingly allow him the third share and there was produced a Testificat of Balloche that there was an agreement Notwithstanding whereof the Lords refused to take the Tutors Oath ex officio seing they found albeit it were Affirmative it could not prove against the Pâ—pil Scot in Cairlyle contra Henderson and Wilson December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds they Suspend and offer them to prove payment of a part by Witnesses and alleadges that it being the Law of England that Wâ—tnesses can prove to take away Writ that therefore these Bonds being Contracted in England with English men the Suspenders ought to have the same benefit of Probation they would have had if they had been Arrested in England upon their Bonds or pursued there and adduced a Practick of Dury in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves and finding that locus contractus was in England But the Bonds bare expresly a Clause of Registration in Scotland And that such Bonds had been ordinar betwixt Merchants in England and Merchants in Scotland and in no time such a Probation admitted and that it would furnish an ordinary delay in such Cases to the disadvantage of Merchants and hindering of Trade by always offering to prove payment in England by Witnesses which could require long time Therefore they found the reason only probable scripto vel juramento Mr. Cornelius Inglis contra Mr. Rodger Hogg December 9. 1664. MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar upon an Infeftment and Appryzing It was alleadged for the Tennents that they were Tennents to Mr. Rodger Hogg by payment of Mail and Duty to him and he was not called The Pursuer answered non relevat unless the Defenders condescend upon Mr. Rodgers Right which might defend him and them The Defenders answered first that they could not be oblieged to Dispute their Masters Right but he ought to be called to Dispute his own Right 2ly It was insinuat that Mr. Rodger had an Appryzing and a Charge against the Superiour The Lords repelled the Defense unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer being prior to his but the Tennents alleadged no such Right and Mr. Rodgers Charge was posterior to the Pursuers Infeftment Iohn Veatch younger of Dawick contra Alexander Williamson Eodem die JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor for paying to him of his proportional part of the Mails and Duties of Appryzed Lands as coming in pari passu with the Defender by an Appryzing within a year of his The Defender alleadged absolvitor because he has Right to the first Appryzing led before the Act of Parliament betwixt Debitor and Creditor and therefore he has the benefit of the 21. Act of the last Session of Parliament declaring that where an Appryzer for his own Security had redeemed a prior Apprysing and gotten Right thereto before the Act betwixt Debitor and Creditor The said first Apprysing should have the same effect it would have had before the Act Debitor and Creditor and should not come in pari passu The Pursuer answered that behoved only to be understood where the second Appryzer had upon necessity to shun the expyring of the legal redeemed and gotten Right to the first Apprysing which could not be said here because the Debitor being minor the legal had and has a long course to run The Lords sustained the Defense without any such limitation in respect of the express Tenor of the Act of Parliament Robert Learmonth contra Laurance Russel Eodem die RObert Learmonth being pursued by Laurance Russel for the price of Wines and the matter referred to his oath gave in a qualified Oath bearing that the Wines in question were sent to him not to be sold till further order and that therefore he keeped them unsold till the end of the year and when they were in hazard of spoilling sold them for 12 pound Sterling the Tun and that he that sent them was Debitor to him by Bonds and Decreets in a greater sum It was alleadged neither member of the quality was competent not the first because it was offered to be proven that the
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ— the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ— Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâ—fted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ— Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâ—uro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ— a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ— contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâ—tior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâ—wer of Deputation which they found not to be annulâ—eâ— by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ— because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ— in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâ—lared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâ—uetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
prejudged as to the constituting an Annualrent in the point of Right not being called yet as to the Point of Possession the Right being constitute he might 3dly Albeit the Heretor must be called when his Ground is first affected with an Annualrent in attinenda possessione yet if the Annualrenter be in possession he may continue the same without calling the Master as well as in Tyends Thirlage c. And here the old Precept of Poynding was evidence sufficient of a prior Possession in re tam antiqua The Lords found that the Decreet was Possession sufficient to interrupt Prescription Minister of contra Lord Elphinstoun Iune 16. 1666. MInister of pursues the Lord Elphinstoun for the Viccarage Teinds of his Lands in his Paroch It was alleadged absolvitor because he brooked these Lands by immemorial possession without paying any Viccarage and so had prescribed Exemption and Liberty It was answered that the Viccarage being due de jure cummuni desuetude cannot take them away nor can any Prescription give Right to them unless it were by a Title as if the Lands had been Templar Lands or belonging to these Orders which payed no Teynds but were exempted by the Cannon Law and therefore in the last Session it was found in the Case of the Earl of Panmoor that 40. Years did not prescribe the Right of Parsonage except for the Years preceeding the 40. It was answered that there was a great difference betwixt Parsonage and Viccarage which is Local and Consuetudinary which is therefore only found due according to what has been accustomed to be payed so that the Teynd of Lint Hemp Geess Stags Swine Fruits Fishes are only due in these parts where they have been so accustomed and therefore as custome may take away a part so it may extinguish the whole The Lords found the Defender could be no furder lyable then for that Viccarage which was commonly payed throughout all the Kingdom viz. Stirk Lamb and Wool and sustained not the same for Milk or any other particular But the Defender upon the twenty one of Iune having Supplicat to be further heard alleadging that it was a common Case that when the Lands were most in Labourage and the Viccarage small and not considerable that through the whole Country Viccarage was never craved time out of minde The Lords stopped Interlocuquutor till they were further heard Thomas Begg contra Patrick Nicoll Iune 22. 1666. THomas Begg gave Commission bearing that he had delivered a certain Sum of Money to Patrick Nicoll to buy Wair for him in England whereunto there is subjoyned the said Patrick his acceptance bearing Sea hazard excepted Thomas Begg now pursues for the Money or Wairâ— Patrick Nicoll alleadged absolvitor because he offers him to prove that shortly after the said Commission he went upon the Voyage and that the Ship was taken and the whole Goods there wherein it must be presumed the Pursuers Money was It being impossible for the Defender to prove that that individual Money was there and yet he is willing to make faith that it was there It was answered that the Defender had Factor-fee and should have transmitted the Money by Bill as he did some of his own and at least he might prove that he had a considerable Sum of Money in the Ship The Lords sustained the Defense and Repelled the Reply and that the Defender being trusted by the Pursuer he could not refuse his Oath in Supplement that his very Money was taken seing he neither might nor could show what money he had when he entrèd to his voyage unless the Pursuer alleadged that he gave the Defender allowance for the Exchange Earl of Eglingtoun contra Laird of Cunninghamhead Iune 23. 1666. THE Earl of Eglingtoun pursues the Laird of Cunninghamhead for the Teynds of Peastoun who alleadged absolvitor for 60. libâ— Yearly which by Decreet of the Plat he payed to the Minister of Irving and produces the Decreet It was alleadged that where the Decreet bore out of the Teinds it was meer Error of the Clerk and disconform to the ground of the Decreet which was a tripartite Contract whereby the Earl of Eglingtoun agreed for so much Victual out of his Teynd beside what was to be payed by the Town of Irving and Heretors and the Heretors oblidged them and their Heirs and Successors of these Lands to pay so much Money which cannot be understood out of their Teynd they being oblidged as Heretors and the Teynd not being theirs but the Earl of Eglintouns who was oblidged so much out of his Teynds besides these oblidgments It was answered that this being to lay a burden of Stipend upon the Stock is most unfavourable and the meaning thereof cannot be inferred unless it had born expresly out of the Stock especially seing the Teynd was under Tack and it was ex gratia for them to pay any more then their Tack-duty but now when the Tacks are expired the Earl cannot crave the whole Teynd and lay this burden upon the Stock 2dly The Lords cannot alter the express tenor of the Decreet of Plat which was a Commission of Parliament The Lords found that the tripartite Contract as to this did not burden the Teynds and therefore seing the Plat could only decern out of Teynds they found that by this Contract the Heretors behoved to relieve the Teynds of this burden out of their Stock Arbuthnet contra Mary Keith Eodem die Andrew Arbuthnet having gotten a Gift to the behove of the Viscount of Arbuthnet of the Marriage of the Heirs of Iohn Keith of Pâ—tten did thereupon pursue the two Heirs Portioners one of them being dead he insists now against the other for her part who alleadged no Process because none was called to represent the other who is thus far interessed that the Probation of the avail of the Marriage against the one will prejudge the other The Lords Repelled the Defense and found it would not prejudge the other against whom new Probation behoved to be used Patoun and Mercer contra Patoun Eodem die JOhn Patoun as Heretor of the Miln of Mukart pursues for the abstracted Multures and alleadges that the Miln is the Miln of the Barony and the Lands a part of the Barony and that they being in immemorial Possession of Intoun Multures of one peck of the Boll and that above thirty years ago there was a Decreet arbitral by the Marquess of Argyle Decerning these Multures The Defenders alleadged Absolvitor because they were Infeft before the Pursuers Right produced cum molindinis and as to the Act of Court the whole Tennents were not present and the Decreet Arbitral it is under Reduction The Lords sustained the Pursuers Condescendence reserving the Reduction as accords Masson contra Iune 27. 1666. MAsson pursuing a Declarator of Escheat It was answered that all Parties having Interest were not Cited at the Mercat Cross conform to the Warrand of the Letters It was answered that was but stilus curiae long indesuetude and it
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ— Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to â—e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ— that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true â—f the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâ—ld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâ—ch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
1668. THe Laird of Wamphray being due a yearly Annuity to his Good-mother the Lady Wamphray which now belongs to the Laird of Castlemaines her Husband jure mariti there is a competition thereanent betwixt Factor to the Earl of Dumfress whose Name was used in the Gift to Dumfreis behove as Donator to the Escheat of Castlemaines and Smart as having appryzed from Castlemaines the Right to this Liferent jure mariti who alleadged that he ought to be preferred to the Donator because albeit his Appryzing was after the Rebellion yet it was upon a Debt anterior to the Rebellion and was long before the Donators Gift and therefore according to the known Custom Diligences of Creditors being before the Gift or Declarator are alwayes preferred to the Donators of single Escheat It was answered for the Donator that that Custom was never further extended then to Moveables or Moveable Sums poynded or made forthcoming upon Arrestments but never to Rights having tractum futuri temporis which cannot be carried by poynding or Arrestment but by Appryzing or Adjudication as Tacks or Liferents when Assigned so that the jus mariti being a Legal Assignation and thereby falling under the Husbands single Escheat falls to the King and Donator by the Rebellion and cannot be taken away by an Appryzing pesterior to the Rebellion Which the Lords found Relevant and preferred the Donator Mr. George Iohnstoun contra Parichloners of Hodony Eodom die MR. George Iohnstoun having Right to a Tack set by the Parson of Hodony for his Lifetime and three years thereafter and having used Inhibition pursues the Possessors of the Lands who alleadged Absolvitor because the Tack is null being set for more nor three years without consent of the Patron by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years The Defender opponed the Act of Parliament declaring such Tacks simply null as were set for more then three year The Lords Sustained the Tack for three years as allowed by the Act of Parliament Râ—bert Thomson contra Earl of Glencairn Iuly 21. 1668. RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work wherein he was Imployed by the late Earl for his Lodging and Yeards when he dwelt in my Lord Oxfoords House It was alleadged for the Earl that the Imployment being a Direction was only probable scripto vel juramento The Lords before answer having ordained Witnesses to be Examined and their Testimonies being clear and pregnant that the late Earl did imploy the Pursuer in this Work and called for him frequently and ordered the Work from time to time they Sustained the Witnesses in the Probation and found it proveâ— It did not appear that this Pursuer was within three years of the Work but the Defender did not insist in any Defense thereupon Patoun contra Patoun Eodem die PAtoun in his Sonâ— Contract of Marriage Dispones to him his Estate and the Tocher was payable to the Father after the Contract and before the Marriage the Father takes a Bond of 2800. Merks from his Son the Wife and her Brother pursues a Reduction of this Bond as fraudulent contra bonos more 's contra pacta dotalia It was alleadged for the Father that he might very lawfully take a Bond from his Son for provision of his Children after the Contract and before the Marriage having Infeft his Son in his whole Estate which was worth 1000. Merks yearly and getting but 2500. Merks of Tocher and having some Debt and many Children It was answered that the Estate was not worth 600. Merks of Rent and the Fathers Liferent of 400. Merks reserved so that the Annualrent of this Bond would exhaust the remainder and they would have nothing to live upon The Lords having considered the Contract and Alleadgances thought that it was not sufficient to annul the Bond that it was after the Contract and before the Marriage if there was any reasonable cause Therefore and before answer ordained the Commuuers at the Marriage to be Examined whether it was communed and agreed that the Tocher should be accepted for fâ—tisfaction of the Debt and Bairns Portions and they having Deponed Affirmative The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage the Estate being very mean Sir Iohn Weems contra Campbel of Ednample Eodem die SIr Iohn Weems having Charged Ednample for Maintainance due in Anno 1648. He Suspends on this Reason that upon consideration of the burning of his House in the time of the Troubles he got an Exemption and Discharge from the King and Parliament Anno 1651. It was answered that that Parliament was Rescinded and the Charger had a Commission to uplift all Maintainance in Anno 1648. from the Heretors notwithstanding of any exemptions granted by these pretended Parliaments and their Committees The Suspender answered that the Act Rescissory has an express Reservation of all privat Rights acquired by Authority of these Parliaments for the time and so this Exoneration of his becoming his privat Right falls not by the Act Rescissory and as to the Act of Parliament and Commission to the Charger it must be understood salvo jure and cannot take away the Suspenders anterior Right acquired Which the Lords found Relevant and Suspended the Letters and found that the Suspenders Exoneration was not taken away either by the Act Rescissory or by the Act and Commission in favours of Bogie Lord Rentoun contra Laird Lamertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lamertoun as Representing his Father for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Fathers Commission by which he medled so that having done by publick Authority for the time in relation to the War and differences of the time he was secured by both these Acts. The Pursuer answered that the Act of Pacification and that whole Parliament was Rescinded and the Act of Indemnity had an express exception of all that medled with publick Monies of Fines Forefaultors or Sequestrat Estates and had applyed the same to their own use and had not duly counted therefore and the Pursuer insisted for what the Defenders Father had applyed to his own use or had not duly counted for The Defender Duplyed that his Father had duly counted for his whole Intromission and had made Faith to the Committee of Estates particularly that he had truly given up his Charge without omission and thereupon was Discharged The Pursuer answered that he had instructed much more Intromission and was content to allow the particulars in the Compt produced and craved the superplus which he had now proven by Witnesses adduced before answer and as for the Oath it could only be understood as an Oath of Credulity like that of Executors Confirming Testaments which doth
Reversion and the Liferents in favours of Mr. Iohn and also his own power of preference of the Creditors and Mr. Iohn his Infeftment upon the Disposition whereupon he alleadged that he ought to be preferred to the Mails and Duties because he stands publickly Infeft by vertue of the said Disposition before any Infeftment in the Person of the Pursuer It was answered for the Pursuer that the Infeftment produced cannot Exclude him because it is expresly granted for satisfying of the Sum whereupon his Infeftment proceeds It was answered for Mr. Iohn Prestoun that he having a power to prefer any Creditor he pleased he payed other Creditors to the value of the Estate whereby Newman is excluded It was answered for Newman that this Disposition was fraudulent and fimulat in prejudice of lawful Creditors whereof he has Reduction upon the Act of Parliament 1621. as being granted by a Brother to another with a power of preference of Creditors at the Purchasers option which Clause is altogether null especially as to the preferences done since lawful Diligence was used by this Pursuer by Horning Inhibition Arrestment and Appryzing and as no Debitor can so prefer himself so neither can he give such a power to any other and therefore the Pursuer ought to be preferred to all the Creditors conform to his Diligence It was answered for Mr. Iohn Prestoun that there being no Diligences done before the Disposition by any Creditor Craigmiller might Dispone being for an onerous Cause as he pleased and might prefer one Creditor to another 2dly Albeit this power of preference were not simply to be allowed after Diligence done by Creditors to prefer others to them Yet it ought to be Sustained in so far as Craigmiller might lawfully have done viz. to prefer Mr. Iohn for the Sums due to himself and for his relief of such Sums as he was Cautioner in The Pursuer answered that such a Disposition was not made nor doth this Disposition any way relate to Mr. Iohns Sum and his Relief but generally and equally to all and there is no difference but the unwarrantable power of preference which can have no effect after Diligence done The Lords found the power of preference not to be Sustained as to any other Debts then to such as were due to Mr. Iohn himself and for which he was Cautioner before the Disposition and found as to these that the power of preference was lawful and valide and was equivalent to this Clause with power to Mr. Iohn to satisfie himself and those to whom he was Cautioner primo loco Wallace of Galrigs contra Mckernel Ianuary 9. 1669. UMquhil Wallacâ— of Galrigs being alleadged to have given a Seasine propriis manibus to his second Wife of two Chalders of Victual The Lords Sustained the Seasine without any other Adminicle But that the Wife had quite her former Liferent by a former Husband in favours of Galrigs whereupon Galrigs offered to improve the Seasine by the Witnesses insert which being four two Deponed positively that they were never Witnesses to a Seasine given by Galrigs to his Wife and the third Deponed that he remembred not that he was Witness the fourth Deponed that he was Witness but said that this Seasine was in Summer whereas it bore to be in Winter the Nottar abode by the Seasine but was not Examined The Lords found the Seasine improven but would not Examine the Nottar nor any other Person mainly in consideration that the Seasine was prâ—priis manibus without any other Adminicle otherways the Nottar and one Witness affirming the Lords would have Examined the Nottar or any other persons or Evidences for astructing the verity of the Seasine George Hume contra Seaton of Menzies Ianuary 13. 1669. GEorge Hume as Assigney by the Earl of Wintoun to a Bond granted to the Earls Factor for his behove having Charged thereupon The Creditor Suspends in Discussing whereof it was alleadged for George Huâ—â— that he ought to have Annualrent because the Suspender by a missive Letter produced written to the Umquhil Earl of Wintoun obliged him to pay Annualrent for the time by gone and therefore ought to continue the same till payment The Suspender answered it contained nothing as to the Annualrents in time coming The Lords found Annualrents due from the beginning both before and after the Letter though they exceeded the Principal Sum seing once Annualrent was promised for some Terms Alexander Mckenzie of Pitglasse contra Ross of Auchinleck Ianuary 14. 1669. ALexander Mckenzie having Right to two Compryzings of the Lands of Auchinleck one in Anno 1644. and another in Anno 1647. which being alleadged to have been satisfied within the Legals and the matter referred to an Auditor who reported these Points to the Lords First Whether the Appryzer should Compt for the Mails and Duties so as to impute the same to both Appryzings as to years after the second Appryzing or to impute them wholly to the first Appryzing during its Legal and then to the second Appryzing during its Legal It was alleadged for the Appryzer that he having two Titles in his Person it was free for him to impute his Possession to either of them and yet he was so favourable as not to crave his option but to impute proportionally to both albeit in Law when Receipts are not specially as to one Cause electio est Debitoris 2dly When any payment is made by a Debitor to his Creditor indefinitly it is still imputed to the Annualrents in the first place before it can satisfy any Stock so that any satisfaction gotten by him must first be imputed to the Annualrent of both the Sums and then to the Stock of the first It was alleadged for Auchinleck that the Intromission could only be attribute to the first Appryzing First Because by that Right the Appryzer entered in Possession and cannot invert his Possession to a third Parties prejudice 2dly The first Appryzing est potior jure for if the two Appryzings were in different Persons he that had the second could never attain Possession against the first 3dly In dubio solutio est imputanda in duriorem sortem and therefore to the first Appryzing for if imputation be made to both the first Appryzing will not be satisfied within the Legal and the Debitors Right will be taken away which is most infavourable 4thly The Appryzer as he did not Possess by the second Appryzing so he could not because the first Appryzing carries the Right of Property and the second carries only the Right of Reversion The Lords found the Possession was only to be attribute to the first Appryzing and not to the second while the first were satisfied The next point was that it was alleadged the Appryzer had sold a part of the Lands within the Legal and therefore the worth of these Lands ought to be allowed in satisfaction of the Sums It was answered that the Appryzer could not Dispone the Lands simply but only his Right of Appryzing which
most rationally ascribe the same to the first especially seing he had both the Rights from the same Party and was not introduced to the Possession by them more upon the one Right than upon the other It was answered for the Pursuer that albeit Parties may make use of any Right they have to Defend their Possession without interverting the same yet that must always be where the posterior Right doth not derogat from the former either as to Right or Possession But here the second Contract and Decreet is inconsistent with and derogatory to the former for the Earl having power to enter by the first till he were payed of one thousand pound Sterling resting of four fructibus non computandis in sortem taking a posterior Right whereby he was to enter for payment of nineteen thousand pounds fructibus non computandis in sortâ—â— he derogat so far from the first that he must Possess primo loco by the last seing the first is not reserved 2dly The late Earl could only be understood to enter in Possession by that Right or the former Heretors to relinquish the Possession to him upon that Right which then had paratam executionem and could then instantly have forced them to quite the Possession but that was only the last Contract and last Decreet whereupon the late Earl had obtained Sentence in his own Person in Anno 1643. when he entered in Possession But as for the first Contract and Decreet of Possession it had not then paratam executionem never being Established in the Persons of the Heirs of Line much less in the Person of the late Earl who had Right from the Heirs of Line by Assignation himself being only Heir-male The Lords found that the Possession was only to be ascribed to the last Decreet which only had paratam executionem primo loco without prejudice to the Earl if that Right were Exhausted to defend himself with the first Right in the next place Major Bigger contra David Cuninghame of Dankeith Iuly 15. 1670. MAjor Bigger having Right to the Teinds of Wolmet from the Earl of Lauderdail pursues David Cunninghame of Dankeith and Iean Dowglas Relict of Wolmet his Spouse for Spuilzie of the Teinds restricted to wrongous Intromission and insists for the fifth of the Rent The Defenders alleadge absolvitor because they produce a Valuation of the Teinds of Wolmet obtained at the instance of umquhil Patrick Edmonstonn of Wolmet before the Commission for Valuation in Anno 1636. The Pursuer answered that the Defense ought to be Repelled First Because Swintoun standing then in the Right of these Teinds had raised Reduction and Improbation of this Decreet of Valuation against Iames Edmonstoun as Heir to Wolmet and thereupon had obtained a Decreet of Certification which is now produced 2ly By Articles betwixt Dankeith and Major Bigger produced Dankeith Compts for a greater Duty than this Valuation and so passes therefrom and Homologats the Majors Right 3dly The Decreet of Valuation took never effect there having never been payment made conform thereto but Tacks accepted by the same Defenders and Duties payed by them of a greater quantity The Defender answered that the Certification could have no effect against the Defenders because it was only obtained against Wolmets appearand Heir who had only the Right of Reversion the Wodsetter who was Proprietar publickly Infeft and the said Iames Dowglas Liferenter by a publick Infeftment never being Called who do now produce the Decreet of Valuation quarrelled And as to the Articles they can import no Homologation because the Article anent the Teind bears only such a sum without relating to the fifth of the Rent or to the price of the valued Bolls The Pursuer answered that the Valuation having been obtained at the Instance of Wolmet and not of his Wife he might Reduce the same by Calling only Wolmets Heir who had not only the Reversion but a Back-tack and he was obliged to Call no other especially seing they had no Right to the Teinds the Defender answered that the Heretor has undoubtedly Interest in the Valuation though they had no Right to the Teind because it Liquidats the Teind and Liberats the Stock of any further and so hath the Liferenter for the Liferent Right especially she being publickly Infeft so that though the Decreet was obtained at umquhil Wolmets Instance yet he being Denuded of the Property by a publick Infeftment of Wodset with his Wifes Liferent reserved therein they could not be miskenned and their Right taken away by a Process against Wolmets appearand Heir who was Denuded of the Property and who did now produce the Decreet of Valuation and abode by it as a true Deed. The Lords Sustained the Defense upon the Decreet of Valuation and found the Certification could not take away the Liferenters Interest in the Valuation she not being Called and found the Articles to infer no Homologation but found the third member of the reply Relevant that Tacks were taken by the Defenders and Duty payed of a greater quantity since the Valuation Lady Lucie Hamiltoun contra Bold of Pitcon Eodem die LAdy Lucie Hamiltoun insists in her Reduction before Debated on the eight of Iuly instant against Pitcon on this Ground that abbeit the Disposition granted to him by George Hay the Common Debitor be anterior to the Pursuers Inhibition yet it must be Reduced on this Ground that it is without any equivalent onerous Cause and that albeit in bear an onerous Cause yet that will not instruct the same but it must be instucted otherwise than by Pitcons own Oath because it is betwixt conjunct Persons two Good-brothers and because it bears not only to be in favours of Pitcon himself but for the use and behave of the Creditors whose Names were then blank and thereupon are now excluded as being filled up after the Pursuers Inhibition so that the Disposition being in so far fraudulent and not totally granted to Pitcon for himself the proportion of his Interest cannot be known but by instructing the Debts due to him and for which he was ingaged the time of the Disposition It was answered for Pitcon that he was ready to instruct the Debts scripto and for some few to whom he had undertaken payment at the time of the Disposition he offered to produce their Bonds and to Depone that he undertook payment of them as said is which is all that is required by the Act of Parliament anent fraudulent Dispositions whereby the defect of an onerous Cause is to be proven by the Parties Oath who gets the Disposition The Lords Repelled the Alleageance and found that Pitcon behoved to instruct the Cause of the Disposition otherwise than by the saids Bonds and his own Oath It was alleadged for Kelburn another of the Creditors that he had Right by an Appryzing proceeding upon sums anterior to the Inhibition It was Replyed that the Appryzing was null First Because the Denunciation whereon it proceeded was not at the Mercat
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
Partiality and Corruption of Witnesses and the question being only the manner of Probation by the Law of God and all Nations Witnesses are the general mean of Probation and so ought to take place in all Cases where Law or Custom hath not restricted the same and it cannot be pretended that ever there was one Decision of the Lords finding Reprobators only probable scripto vel juramento And it being acknowledged that Witnesses are competent ante sententiam there is neither Law nor Reason to refuse the same post sententiam especially with us where the Names of the Witnesses are never known till they be produced neither is their Testimonies published or ever known before Sentence So that the other Party can have no interest to quarrel their Testimonies or know them before Sentence and so Reprobators shall never be effectual unless proven by the Oath of the Party that hath Corrupted them which is as good as absolutely to refuse Reprobators for it cannot be imagined that a Party will Corrupt Witnesses and not resolve to deny it upon Oath And as â—o the inconvenience to singular Successors the Oath of the Author may be as hazardous to them as Witnesses and if the acquirer of the Sentence be denuded if in that Case even their Oath be not receivable it is easie to Evacuat all Reprobators And as for the inconvenience of perpetuating Processes that holds whether Witnesses be receivable in Reprobators before Sentence or after and if admitting of Witnesses be so qualified that it be only when the Witnesses in the first Sentence are not above Exception and the Witnesses in the Reprobators above all exception and that it be in a palpable Fact of receiving Bribes and recently only after Sentence and with a liberty to the Obtainer of the Sentence to astruct the same by other Witnesses or Evidences as in Improbations for Reprobator is a kind of Improbation there can be no hazard of multiplying Reprobators but this inconvenience if it were Relevant would not only take away all Reprobators but all Reductions for the Decreet Reductive may be quarrelled by a second Reduction and that by a third and so without end But the inconvenience on the other hand is far greater that all Parties will be sure to Corrupt VVitnesses if they do but resolve not to confess it and VVitnesses will be easie to be Corrupted being secured against all Redargution And whereas it is pretended that Witnesses with us prove not above 100. pounds that is only where VVrit may and uses to be adhibite in paenam negligentium But otherwayes VVitnesses are adhibite in the greatest matters as Improbation of VVrits Probation of Tenors Extortion Circumvention Spuilzies Ejections and Intromissions of whatsomever kind or quantity The Lords found Reprobators upon Corruption and prompting of VVitnesses only probable scripto vel juramento after Sentence this was contrair the opinion of many of the Lords and was stoped till a further hearing at the Bar. Earl of Hume contra The Laird of Rislaw Iuly 18. 1671. THe Kirk of Fogo having been a Kirk of the Abbacy of Kelso when the same was Erected this Kirk was reserved in favours of the Earl of Hume and Disponed to his Predecessors whereupon he pursues the Laird of Rislaw for the Teinds of his Lands as a part of the Teinds of Fogo who alleadged absolvitor because his Predecessors obtained Tack of their Teinds from the Minister of Fogo as Parson thereof which Tack though it be now expyred yet he bruiks per tacitam relocaâ—ionem The Pursuer Replyed that his tacite Relocation was interrupted by Inhibitions produced The Defender answered that the Inhibitions were only at the instance of the Earl of Hume who was never in Possession of his Teinds whose Right he neither knew nor was obliged to know and the Earl ought to have used Declarator against the Defender and the Parson of Fogo his Author which was the only habile way and not the Inhition The Lords Sustained the Processe upon the Inhibition and restricted the Spuilzie to wrongous Intromission unless the Defender could propone upon a Right in the Person of himself or his Author that could either simply exclude the Earls Right or at least give the Defender or his Author the benefite of a possessory Judgement and put the Earl to Reduction or Declarator VVhereupon the Defender alleadged that the Parson of Fogo was presented by the King as Parson of Fogo and did so bruik by the space of thirteen years which was sufficient to Defend him in judicio possessorio It was Replyed First That the Minister cannot pretend the benefit of a possessory Judgement because his Possession was not peaceable in so far as it was within the thirteen years it was interrupted by the Pursuers Inhibitions The Defender answered that he offered to prove thirteen years Possession at least seven years peaceable Possession before any Inhibition which is sufficient for as thirteen years Possession makes a presumptive Title decennalis triennalis possessor non tenetur docere de titulo yet where the Defender produces a Title viz. a Presentation as Parson he is in the common Case of a possessory Judgement upon seven years Possession The Pursuer further Replyed that albeit the seven years were peaceable and sufficient for a possessory Judgement yet the Defender cannot maintain his Possession by tacite Relocation for he having no positive Right in his Person his Tack being Expired he can only maintain his Possession upon his Authors Right as Parson and so can be in no better Case than his Author who if he were compearing not pleading the benefite of a possessory Judgement he would be excluded by this Reply that he had acknowledged the Earls Right and taken Assignation from him to the Tack-duty due by the Defender which though it would not be sufficient after the Defenders Tack to exclude the same if it were not expired yet it is sufficient against his tacite Relocation which can only subsist while his Author hath Right and Possession and being but a presumptive continuation of the Right it is easily taken away by any Deed of the Author It was answered that tacite Relocation being introduced by Law was as strong as a Prorogation and continuation of the Tack which could not be prejudged by any posterior Deed of the Parson The Lords found the Defense upon the Parsons Right cled with seven years peaceable Possession Relevant in judicio possessorio to defend the Defenders tacite Relocation but found the Reply Relevant that the Parson had accepted Assignation from the Pursuer to make the Defender lyable for the ordinary profits after the Assignation and after the first Inhibition but only for the Tack-duty till the first Inhibition and found that the tacite Relocation was not in a like case as if the Defender had a Tack or Prorogation Andrew Harlaw contra Agnes Hume Iuly 18. 1671. ANdrew Harlaw having obtained Decreet against Agnes Hume as Executrix to her Husband She Suspends and
raises Reduction on this Reason that the inferiour Judge did wrong in Decerning her being only Executrix Creditrix as being lyable for the whole Inventar because by the Law and Custom of this Kingdom Executors Creditors who Confirm only for obtaining payment of their Debt are lyable for no more but what they intromet with above the Debt due to them and are not lyable for further Diligence as other Executors Yea it was found upon the 11. of Iune 1629. observed by Dury that an Executor having no interest was not lyable for Diligence but only to Assign in the Case betwixt Nivin and Hodge It was answered that Executors Creditors are lyable for intromission and omission as other Executors because they accept an Office and exclude others who would be lyable for Diligence and they have no more advantage but that they are preferred to others as being Creditors and may pay themselves in the first place and it would be of pernicious consequence if their negligence should cause the interest of Children though Orphants as well as Creditors to perish and therefore the Lords did justly in Anno 1667. in the Case betwixt Bisket and Greig find an Executor Creditor lyable for the whole Inventar both for Intromission and Omission It was answered that it hath always been heretofore holden that Executors Creditors were not in the case of other Executors as to Diligence and that the ordinar Remeed was that Creditors might pursue the Executor Creditor and thereupon would obtain Assignations to any Debts in the Inventar they pleased except such as had been uplifted by the Executor for their own payment upon which Assignations they did always pursue for themselves so that there was neither Exclusion nor obstacle to the Creditors but on the contrair they got Assignations without being at the trouble to Confirm So that this Confirmation being many years ago it were against all Reason to make the Executors Creditors further lyable than they were then esteemed to be which might also be drawn back against all Executors Creditors which are very many The Lords having considered the Decision betwixt Bisket and Greig that it was upon a recent Confirmation and in favours of a Wife for her Provision out of whose hands the Executor had recovered the Goods though she was a priviledged Creditor They found that this Executor Creditor being long before Confirmed was not lyable for Diligence but only for Intromission and resolved to take it into consideration whether Executors Confirming in time coming should be lyable for Diligence and to consider the inconvenience on both parts and to make an Act of Sederunt thereanent Countess of Cassils contra Earl of Roxburgh Eodem die THe Countess of Cassils in her Contract of Marriage with the Lord Ker being provided to 5000. pounds he did stante matrimonio provide her to an Annualrent of 10000. merks further during her Lifetime and upon his Death-bed he made two Testaments of one date by the one he nominate his Father Tutor to his Children and left to him the Provisions of his Wife and Children by the other he provided his Lady to 5000. pound more than her Contract and named Provisions for his Children but subjoyned a Clause that if his Father who was then in England returned and made use of the other Testament that this Testament should be null The Earl of Roxâ—urgh his Father did return and was Infeft as Heir to his Son and did Ratifie his Sons Bond of Provision of 10000. merks and by his Testament did expresly mention his Sons former Testament and by vertue thereof named Tutors to his Oyes and by a Bond aâ—part gave different Provisions to them from these appointed by their Fathers Testament and this Earl of Roxburgh being Heir of Tailzie to him did in his Contract of Marriage reserve the Pursuers Infeftment of this Annualrent and did many years satisfie and take Discharges of the same and now she pursues the Earl as contraverting the payment for some years bygone and in time coming during her Life The Defender alleadged absolvitor because the Pursuer being competently provided by her Contract of Marriage this additional Provision was a Donation betwixt Man and Wife and so by the Law is Revockable at any time during the Husbands Life even upon Death-bed or by his Testament not only by a direct Revocation but by any thing that might import a change of his mind and accordingly he hath Revocked the same by his Testament produced adding only 5000. pounds to his Ladies Provision by her Contract and albeit thereafter the late Earl did Ratifie and acknowledge this additional Provision yet therein they were errore lapsi not having known of this Testament of the Lord Ker at least not having understood that it imported a Revocation of this Provision and therefore may justly now Reclaim against it The Pursuer answered that this Testament imported no Revocation which it did not mention neither is the addition of 5000. pounds therein an indirect Revocation which must ever be by an inconsistent Deed but both these conditions are consistent albeit that by the Testament it be modo inhabili and it is very like that the Testator being taken with a great Fever did not remember of this Provision or added the other 5000. pounds on this consideration that the former Provision was only to take effect after the Earl of Roxburghs Death so that the Lord Kers meaning might probably be to add 5000. pounds during his Fathers Lifetime 2dly Though the Testament could import a Revocation yet the Testament it self being Conditional only to stand in case his Father returned not to Scotland and made use of the other Testament of the same date all the Tenor of it and this restricting Clause is affected with the same Condition so that if the Testator had said that he had restricted his Ladies additional Provision to 5000. pounds in case his Father returned not but in that case left her to his Fathers provisions it would be truly a conditional Revocation which Condition is purified by the Fathers Return and providing the Lady by his Ratification of this Bond of Provision nor can it be justly alleadged that both this and that Earl were errore lapsi seing the Testament is produced by the Earl himself and was never in the Ladies hands and doubtless it hath been advised by the late Earl ere he Ratified who was a most provident man and his Ratification is dated at the Canongate ubi fuit copia peritorum and if Ratifications should become ineffectual or if errore lapsus should be Relevant upon the ignorance or mistake of the import of a Writ Ratifications should be of no effect but any ground that might defend the Ratifier before the Ratification might annul the same upon pretence that he knew it not and therefore errore lapsus is only understood de invincibili errore facti but never de ignorantia juris quae neminem excusat The Lords found that any Revocation
Pursuer and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to
being Extracted on the improbation though it be omnium exceptionum ultima Ianuary 23. 1666. contra Earl of Kinghorn In Improbations the Lords declared they would grant three Terms for production of Rights of Lands and appointed the Ordinary to intimate the same November 26. 1667. Hay of Haystoun contra Drummond and Hepburn Improbation upon certification was found null because the Defender was then Prisoner of War in Ireland and his Right was after acknowledged by an agreeement though not perfected Iuly 25. 16â—8 Campbeâ— câ—ntra Laird of Glenâ—rchy In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth or Forgery of the Writs in question though the Writs were not produced there being pregnant presumptions and fragrant fame of Forgery Iuly 6. 1669. Barclay contra Barclay In an Improbation after certification was Extracted The Lords Examined Witnesses as to the Forgery in so far as it might be known without production of the Writs in question and though thâ— Witnesses were accessory to the Forgery November 9. 1669. Inter eosdem In an Improbation where the Writs were once judicially produced in Exchequer and wilfully keeped up certification being Extracted The Lords upon Copies Examined the Witnesses insert and Writer who confessed the Forgery and were moved thereto by the Defender whereupon the Writs were not improven as not being produced but the Writers and Witnesses were found Forgers and the Defender as user and accessory and all were declared infamous and remitted to the Council to use an extraordinary Remedy by Banishment against the Defender Ianuary 26. 1670 Inter eosdem In an Improbation where one of the Witnesses insert had a Designation alleadged competent to more persons all that were alleadged to be so designed that were alive were ordained to be Summoned and the hand writs of those that were dead to be produced Iune 8. 1671. Steuart contra Mckenzie and Kettlestoun In an Improbation of the Minute of a Tack wherein one Deponed that he had subscribed at the Defenders Instigation who told him that he caused the Pursuers Name to be set to the Writ and another that he did not see the Pursuer subscribe and the third who was Writer of the Minute and also Brother to the Defender Deponed that he saw the Pursuer subscribe with her own hand The Writ was found improven and false but there was not two Witnesses instructing who was the Forgeâ— Iuly 22. 1671. Miller contra Bothwel of Glâ—â—corse INCIDENT was not Sustained upon an Act before answer ordaining all Writs to be produced the parties would make use of which was found only to extend to such Writs as they then had Iuly 3. 1662. Kello contra Paâ—toun In an Incident four Terms were allowed for proving the having of the Writs by Witnesses but the Terms were to be short December 15. 1665. Moâ—teith contra Anderson An Incident was Rejected because the Pursuer of the principal Cause was not called thereby and the Executions suspect December 23. 1665. Laird of Câ—â—neck contra Lord Bargeniâ— Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill though it contained a blank but it was Sustained against the Defenders havers of the Writs for whom a blank was left though nor at first filled up in respect of the custom for the last and not for the first Iuly 3. 1667. Creditors of Waâ—chtoun contra Counteâ—s of Hume PRO INDIVISO was not sustained to hinder Removing of a Relick from an House as being a Tenement Indivisible though she had a Terce of it but the Heretor was found to have Right to possess yet so that if he dwelt not so himself she should be preferred to all others she giving like Mail as others would pay Ianuary 26. 1665. Logan contra Galbraith INFEFTMENT of Annualrent holden base was found valide against a posterior Publick Infeftment because thereon there was a Decreet of poinding the Ground though it could take no effect for a long time seing the Entry to the Annualrent was not till after the Constituents death February 26 and 27. 1662. Creditors of Kinglassie competing Infeftment past in Exchequer on an appryzing against one who was Infeft by his Authour not Confirmed was found not to supply or comprehend a Confirmation in prejudice of another Creditor who regularly had obtained Confirmation of that null Seasine in so far as might concern his base Right depending thereon Ianuary 16. 1663. Tennents of Kilchattan contra Laird of Kilchattan Major Campbel and Baillie Hamiltoun Infeftments graâ—uitous to a Wife after she was provided by her Contract of Marriage was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply Iuly 22. 1664. Lord Loure contra Lady Craig An Infeftment to a Wife in Liferent was Sustained by her Seasine adminiculat by her Contract albeit the Seasine was not immediatly upon the Contract but related a Bond granted for the same Cause which was not produced Ianuary 29. 1665. Norvil contra Sunter Infeftment of warrandice Lands being in the same Investiture with the principal Lands and both holden base was preferred to a posterior publick Infeftment of thâ— same Warrandice Lands though cled with long possession and that upon an Action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. An Infeftment of Kirklands was Sustained though it bear to be upon Resignation and had not the râ—ddendoâ—per expressum but relative to the former Infeftment without necessity to produce any original Right seing the Charter was subscribed by the Abbot with consent of the Convent Ianuary 17. 1666. Lord Rentoun contra Feuars of Coldinghame An Infeftment to a person on her own Resignation bearing expresly her to be Heir to her Father who was last Infeft The Charter was found equivalent to a precept of clare constat Ianuâ—ry 20. 1666. Inter eosdem Infeftment of the Office Forrestrie with a Duty out of the whole Lands of an Abbacy was found valide being granted by the Abbot and Convent without Confirmation by the King or Pope Ibidem Infeftment in warrandice granted by a Husband to his Wife though base holden of himself and ex intervallo after the principal Infeftment was found valide against a posterior publick Infeftment of the same warrandice Lands as being cled with the Husbands Possession in the principal Lands and that there needed no Declarator of Distress or Eviction but a pursuit of Removing or Mails and duties upon the Eviction is sufficient which cannot be excluded by a possessory Iudgement upon seven years Possession by the publick Infeftment unless it were seven years after the Eviction February 20. 1668. Forbes contra Innes An Infeftment of Annualrent being before a Liferenters Infeftment after which there followed a corroborative Security accumulating the bygone Annualrents and giving Infeftment for both which posterior Security was not Sustained against the Liferenter nor was it held
Scotsmen as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ— taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ— to the Legataâ— as lâ—gâ—tum rei aliena scienter legatâ— for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprâ—â—l contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â— Scot of Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ— sum it being as pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâ—oyned that he would not pass from the communing and albeit he had received the Keyâ— of the House seing there was neither Minute nor other Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ— competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ— which werâ— visible and instantly vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â— 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Groâ—nds of Excommunication who having founded upon an appeal to the King and Council The Lordâ— having had an account from the Council that they had Remitted that matter to the â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â— Scâ—â— coâ—tra Bâ—ssâ—wel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â— Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r â— 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 in the Waâ— bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ— found Iyable for publick burden with the 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract â—nfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ—-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest
the Lands and Sums to the Heirs of the marriage which failing the mans Heirs nor yet to make any portion thereof to return to the Wife in that case as not being ordinary but only to rectifie the same as to the Wifes loynture November 22. 1664. Mâ—gil contra Ruthven of Gairn Minority and Lesion was found only competent by Reduction and not by Exâ—eption or Suspensâ—on Iune 28. 1665. Kyâ—e contra seaâ—oun Minority and Lesion was not â—lided because the money was delivered to pretended Curators who were lyable to the minor without diâ—cussing the Curators first seing they were not in this Process and the minor hath his option to Reduce against the Creditor or pursue his Curators and Intrometters Iuly 2. 1667. Lord Blantire contra Walkinshaw Minority and Lesâ—on being insisted in by reduction and majority being alleadged in defense neither party was preferred in probation but Witnesses allowed hinc inde February 20 1668. â—arquâ—ar of Towliâ— contra Gordouâ— Minority and Lesion was sustained to Reduce a Disposition by a Wife to her Husbands Brother though it had been to her Husbands behove in contemplation of the marriage seing there was no remuneratory provision on the Husbands part and that the legal Terce was not enough but that the Husband ought to have acquiesced in his jus mariti as well as the Wife in â—er Terce or both had mutual provisions here the Wife was carried away and married without her Freinds consent Iuly 14. 1669. Earl of Marischal contra Keith of Whitehaugh A MINVTE disponing Lands with part and pertinent was found to be extended â—o as to express common pasturage in a Muire possessed therewith the time of the Bargain February 14. 1668. Borthwick contra Lord Borthwick A Minute was exâ—ended by the Witnesses insert as to the manner of payment which was not so exprest therein Ianuary 15. 1666. Châ—ap contra Philip. A MISSIVE LETTER by a Merchant to a Factor to send home Wine on such another Factors credite with whom the Writer not being acquaint but upon the Factors account was found to oblige the Writer and not that third party unless he had accepted neither then did it liberate the Writer but the third party was expromissor in this the Lords would not take Examination of Merchants what such Letters did import February 7. 1665. Pallat Factor at Burdeux contra Fairholm A Missive Letter was found to instruct an accompt of 100. pound sterling received and Furniture sent albeit it was not holograph nor amongst Merchants but betwixt noble persons being for â—urniture sent from London to the Writer of the Letter by the other noble person being then at London to whom it was written the said receiver of the Letter making Faith that this was the true Letter that he received from the other February 28. 1671. Earl of Northesk â—ntra Viscount of Stormont Missive vide Clause Iuly 15. 1662. Wauchop contra Laird of Niddrie c. A MOTHER was found obliged by the Law to aliment her Children according to her means they having no means of their own or any person representing their Father able to aliment them in their Family but that the Mother was only â—bliged to aliment them in her Family dâ—d not to pay modification for their Education out of her Family albeit they were â—oble persons and the Mother had miscarried February 23. 1666. Children of the Earl of Buchan contra Countess of Buchan A Mother taking a Bond to her self in Liferent and to her Children in Fee was â—ound not to have poweâ— to alter or assign that Bond to another as being presumed to be made by her own means but the same was presumed to be the Childrens meansâ— by their Father though their Mother was not Tuâ—rix or Curatrix to them seing the Bond did not express it to be the Mothers own means noâ— reserved a power to the Moâ—â—er to Dispone February 18. 1671. Dundas contra the Lairds of Ardrosâ— and â—ouch MOVEAâ—â—ES being craved to be restored as being the Pursuers the Libel was not found Relevant unless he condescended quomodo desâ—t â—osildire and instruct the same and he having condescended that it was by Loan it was found probable by Witnesses 〈◊〉 21. 1665. Scot contra Fletcher In Moveables possession presumes a Title without necessâ—ty to instruct the possessors authors Rightâ— without distinction of ordinary moveables or lewels unless the presumpâ—ion be elided by â—â—onger probation that such Iewels could not have belonged to him that impignoâ—ate the same who neither had them as a Merchand nor leweler neither did nor could make use of them for his own wearing Decâ—mber 12. 1665. Ramsay contra Wilson Here the first Author Impignorat them by Writ and immediatly â—ent abroad NEAREST OF KIN surviving the Deâ—unct Transmit their share of the deads part to their â—xecutors and it doth not accresâ—oâ—â—â— the rest of the nearest of kin or to their Executors February 1â— 166â— â—ell contra Wilkie IN NONEâ—TRY the full Rent is due from the citation in the general Deâ—â—arator and not from the time of the Sentence only 〈◊〉 and accordingly the special Declarator was sustained Iuly 25. 1666. Harper contra his Vassals Idem Iune 12. 1673. Faw contra Lord Balmerinâ— and Laird Pourie NOVITER Vâ—NIENS AD NOT ITIAM was sustained to reduce the Circumduction of a Term upon the Suspenders making Faith that the Writs now produced to prove what was then â—o have been proven were found out by her since the Term was Circumduced Iune 29. 1665. Norvil contra Suntar OATH OF A WIFE never to come in the contrary of her Bond granted 〈…〉 was found not to hinder her to alleadge that the Bond was null ipso jure February 18. 1662. contra 〈◊〉 Oath of parties being taken and they deponing upon the Tenor of a Writ and assoilzied thereupon were decerned thereafter upon production of the same Writ as not being contrary to the Oath but being only in so far as the Deponent Remembred the Tenor of the Writ November 23. 1665. Campbel contra Doctor 〈◊〉 The Oaâ—h of an author was found competent against a singular Successor in an Appryzing for proving the â—ame satified by intromission seing before this Defenders Right the matter was Litigious and an Act Extracted referring the intromission to that Authors Oath Iuly 14. 1666. Sharp contra Glen OATH OF CALVMNIE was found Competent as to one point of a Libel where the rest was not to be proven by Oath but in respect there could be no evident difference as to that point betwixt the Oath of Calumny and Verity and that the point was no ways probable but by the Oath of Verity the Oath of Calumny thereanent was refused February 20. 1667. 〈◊〉 contra 〈◊〉 OATH EX OFFICIO â—nent having of Writs was found to be given if at any time the Deponent had them and how he put them away that it might appear if fraudulently but not to depone if he knew who had them as not being proper November 1â—
Discharges of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â—664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was â—ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linâ—â—thgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude â—ucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ— except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of â—osse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent â—ut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâ—a The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâ—ldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ— was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they â—oâ—sed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was â—ound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoâ—rse and conâ—ortship though made without consent or special Commission from the Owners being both in precinctâ— belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coâ—nterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to â—ry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
Writ was reduced upon that Sentence as posterior and prejudicial to the bargain Ianuary 21. 1669. Creditors of Pollock contra Pollock Witnesses were admitted to prove a Merchant compt as to Articles more then three years preceeding the Citation it being a curâ—ent accompt though begun by the Defunct and continued afâ—er hâ—â— deceass by his Funeral provision and by the Chamberâ—â—â—â— of his Heir then a Pupil seing three years intervâ—eâ—ed not in any part of the accompt February 26. 1670. Grahame contra Laird of Stanâ—byres Witnesses were admitted to prove the vâ—â—iation of a Contract of Marriage and not to annul it but to extend it as it was before the viâ—iation Iune 11. 1670. Hunter contra Creditors of Peter Witnesses were admitted to prove intromission with Mails and Duties of Tennents though silver Rent intrometted by one who was infeâ—t in an annualrent out of the Tenements albeit by the intromission the principal sum for which the annualrent was constitute would be satisfied and the infeâ—tment extinct February 4. 1671. Wishart contra Arthur Witnesses were admitted to prove an appryzing to be to the behove of the apparent Heir in respect of this concurrent presumpâ—ion that the appryzing was assigned to the appear and Heirs brother February 22 1671. Gordoâ—n contra Mcculloch Witnesses were admitted to proveâ— Ministers possession of â—ands to be by tollerance of an Herâ—â—or and â—o not â—o be a Glâ—ib belonging to the Kirk where the Ministers possession was decenâ—â—lis trienâ—alis but that writ was necessary if his possession haâ—t been for 40. years to prove the tollerance Iune 22. 1671. Minister of contra Duke of â—alâ—leugh WITNESSES EX OFFICIO were received for proving the delivery of a Bond blank in the Creditors name the matter being betwixt brother and sister where Trust was very presumâ—able February 21. 1667. Iohnstoun contra Iohnstoun Witnesses were examined â—x officio to prove Warrant or Command to a deed done in prejudice of him who had the Commission to do the same deed and could have â—indered others February 21. 1667. Lord Râ—â—toun contra Laird of Lambertoun Witnesses and the writer of a disposition were examined ex officio on thâ— Terms of the Treaty and whether when thâ— writ was read being an absolute disposition it was not read as being redeemable Iuly 2. 1667. Allan contra Fairie Witnesses ex officio being admitted hinc inde not the greatest quantâ—ty proven by two but the quantity proven most pregnantly was followed November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Witnesses ex officio were examined to instruct the cause of a Bond to be by arbitriment and exorbitant it being 37. years dorment without annualrent and the sum filled up with a different hand February 6. 1668. Chisâ—holm contra Witnesses taken ex officio proving the imploying of a Wright in his woâ—â— in a Lodging possest by the â—mployer and his frequent direction anent the work were found to prove against his Heir though above 100. pound and though direction alone without sensible acts is only probable by writ or oath Iuly 21. 1668. Thomson contra Earl of Glencairn Witnesses ex officio 〈◊〉 â—â—de examined in a Reduction on death bed albeit the day of compearance was not come to prevent the death or collusion of the most necessary Witnesses February 16. 1669. Creditors of my Lord Balmerino and Cowper contra Lady Cowper Witnesses ex officio were ordained to be examined before answer for clearing a Trust of the right of â—n appryzing upon divers probabilities hinc inde alleadged February 24. 1669. Earl of Annandail contra 〈◊〉 and Crediâ—ors of Hume A Witness examined ex officio prevaricating in his oath first denying and then acknowledging the same thing was declared in famous and set on the Pillory with a Paper on his â—ace signifying his Fault Iuâ—y 6. 1669. Barclay contra Bâ—rclay Witnesses ex officio being examined were admitted to take away a Bond wholly blank or blank in the Creditors name Fâ—bruary 2 3. 1670. Iack contra Boyd of â—â—nkil and the Earl of Kâ—ngâ—orn conâ—ra Laird of Pâ—â—arro Witnesses ex officio were examined anent the being of a Bond amongst the Writs of a Creditor or his Factor that thereby the debitor might be liberat of the Bond as being retired but was not admitted to prove payment or saâ—isfaction thereof though it was an old Bond without any diligence or payment of annualrent for a long time February 14. 1671. Nâ—â—peir contra Earl of Egâ—â—toun Witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple perâ—on of his whole Estaâ—e without reservation on these points whether the writ was read to him when he subscribed whether he was drunk so that reaâ—on and judgement was disordered and what motives were used to make him subscribe Iuly 11. 1671. Stevâ—ns contra Neâ—lson WITNESSES INSERT in a writ and the Writer were â—ound to have â—ccession as users of that writ as false yet was examined though they were socij criminâ—s and Forgers by their own confession being in an imporbation Ianuary 26. 1670. Lady Toâ—viâ— contra Capâ—ain Barclay A WODSETTER was found to compâ— for the superplus above his â—enâ— though the Woâ—set waâ— before the Act of Parliament 1661. betwixt Debitor and Creditor albeit therein the Vsurpers Act and all such Acts made or to be made were â—enunced Ianuary 29. 1662. Laird of Lamingâ—oun conâ—ra Cheâ—slie A wodset bearing in the Reversion a Tack â—aâ— within the worth of the Land to be given after Redemption was sustained as not Vsurâ—ry but the Wodâ—etter was at a great loss by a Liferent medâ—o â—â—mpore Iune 21. 1662. Laird of Polwarâ— contra Huâ—â— A Wodsetter pursuing for his money was found not to have access thereto tilll he recovered the Possession taken from him by a third party intruding seing he did not de recenti intimate the inâ—rusion and demand his money February 17. 1665. Hopringle of Torsonce contra Ker of Sâ—nderland-hill A Wodset being redeemedâ— upon an Order used though without citation of all parties having interest at the Mercat Cross on the declaraâ—or albeit thereby the Wodsetters Wiâ—e who had a base subaltern infeftment from him in Liferent was excluded and the Redeemer was not found obliged to know the same albeit registrate in the Register of Seasines Iuly â—7 1665. Hamiltoun contra her Tennents A Wodset by a Father to a Son redeemable by the Father during his Liâ—e from his Son on a Rosenoble beâ—ng craved to be declared the Son having appryzed and thereupon alleadging that he had right to the Reversion aâ— and while his Aâ—priâ—ing were Redeemed and till that his Father could not Redeem which at first was sustaâ—ned the case of the Son being favourable the Father having disponed the whole right to a second Wiâ—e but being thereafter debaâ—ed in presentia the Lords were of different judgements and decided not in respect the case seemed to hinder Debitors to Redeem aâ—terior Compryzings